This suit was brought by appellant, Ellis Cooper, against appellees, H. R. Hinman and wife, Ella Hinman, to recover 50 acres of land in Eastland county. The suit is in the nature of an action of trespass to try title. The pleadings are lengthy, and we think we need not fully state them to make sufficiently clear the controlling points in controversy. The facts, briefly stated, are as follows:
On or about the 1st day of October, 1915, Dan Wagoner owned and was in possession of 160 acres of land, of which the 50 acres in controversy is a part, and on which 160 acres was a mortgage securing a loan of about the sum of $1,100, due the 1st of November, 1917. Wagoner desired to dispose of a part of the 160 acres for the purpose of satisfying said loan and releasing the remaining portion of the 160 acres of said debt. For that purpose, Wagoner and wife duly executed and delivered to H. R. Hinman and wife a warranty deed conveying said land to Hinman and wife for the consideration of two notes, one for $150 and one for $1,100, expressed in the deed and secured by the vendor’s lien, due, respectively, in 1916 and 1917. The deed was never recorded. Hinman and wife went into possession of said 50 acres at the time of the purchase, and have continued to occupy same as their home ever since. Hinman paid the $150 note and the interest thereon. On the 20th day of August, 1917, Hinman and Wagoner agreed that Hinman should turn the 50 acres back to Wagoner. The terms agreed upon were that Wagoner should pay to Hinman $100, release him from any obligation for rent on the 50 acres, and cancel the $1,100 note, and that in consideration therefor, Hinman would deliver back to Wagoner the unrecorded deed he had received from Wagoner. Wagoner paid Hin-man the $100 and, while the evidence is not clear, we assume that Wagoner canceled and delivered to Hinman the $1,100 note. Hin-man delivered to Wagoner the deed he had received to the 50 acres, and the deed, when so received, was put in the fire by Mrs. Wagoner and destroyed. Hinman and wife made no deed to Wagoner reconveying the land. Hinman told his wife that it would be necessary to reconvey to Wagoner by the execution and delivery of a deed, but Mrs. Hin-man claimed the 50 acres as her home and refused to reconvey to Wagoner.
On the 6th day of October, 1917, Dan Wagoner and wife by warranty deed conveyed the 50 acres of land in controversy to appellant, Ellis Cooper, for a consideration of $1,300, the sum of $700 paid in cash, and the balance due on time payments. At the time Cooper bought from Wagoner he lived about a mile from Wagoner, and about one-half mile from Hinman. At the time Cooper bought, he had heard from the neighbors around — it seemed to be current rumor — that Wagoner had bought the 50 acres back from Hinman. Dan Wagoner told Cooper that he had bought the place back from Hinman, and Cooper believed it. Hinman and wife were then living on and occupying the 50 acres. Cooper had lived in that neighborhood for many years, knew Hinman and wife, knew they were in possession of the place, and that they had been using, occupying, and living on the place as a home. Cooper did not ask Hinman or Mrs. Hinman anything about the place, or any claim they or either had or would make to the place. He bought the place solely on Dan Wagoner’s statement that he had the property back. Much evidence was introduced to the effect that Hinman and wife had said they had sold the place back to Wagoner, and were intending to leave the place and go elsewhere, and that they had so stated to the neighbors, and, while Cooper had heard such statements, he relied wholly on what Wagoner had told him, that he had bought the place back.
*974 Hinman retained the $100 he had received from Wagoner on the return of the deed. Mrs. Hinman knew that the $100 had been paid to her husband in order to get the place hack, but received no part of it. When Wagoner conveyed the land to Cooper, he did not then know that Mrs. Hinman was making or would make any claim to the place. Mrs. Hinman, before the $1,100 note was due, told Wagoner that she had the money and would pay him the $1,100 and would pay him the $100 he had given her husband for the return of the deed; but Wagoner refused to receive either, claiming the matter had been closed by the arrangements with Hinman, as above stated.
Opinion.
Appellant had pleaded and offered evidence to. show a parol understanding and agreement between Dan Wagoner and Hinman to the effect that the deed executed and delivered by Wagoner and wife to Hinman and wife was delivered temporarily, for the specific use and purpose, and in trust, to aid Wagoner in obtaining the means, by the use of the 50 acres in question, to satisfy the debt secured by the mortgage, and for no other purpose, and that in redelivering the deed Hinman was only carrying into effect said agreement ;■ that Hinman had abandoned the idea of making any further efforts to procure, through the use of the 50 acres, the means to discharge said mortgage debt; that because of said agreement, and because Hinman had abandoned any further effort to procure said means to discharge said mortgage debt, Hin-man and wife had voluntarily returned said deed to Wagoner, and did not demand its return, and did not object to its destruction, and did not claim or assert title to the 50 acres, but submitted without objection to the recorded title of Wagoner and wife to the 160 acres of land. Hinman presented no exception to appellant’s petition setting up said parol agreement, but made objection to the evidence offered to show the agreement, and the facts above stated, and evidence offered to show why Hinman and wife, after the delivery of the deed to Wagoner, concluded to assert title in themselves to the 50 acres. The evidence offered was the recent bringing in of an oil well. The court sustained the objections and the rulings thereon, and the court’s rulings are made the grounds of several assignments presented in different forms.
“That principle has never been recognized by this court as applicable to a deed to land, or a deed of trust affecting the land, where the delivery of the instrument was made to the grantee, and not to a third person. It has, upon the contrary, been distinctly held that a deed or deed of trust cannot be an escrow where it is delivered to the grantee in the instrument.” Holt v. Gordon,176 S. W. 902 .
See, also, Heffron v. Cunningham,
Under the undisputed facts shown in the record, the court was not in error in instructing the jury to find for appellees.
The case is affirmed.
<§P5lTor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
<gs^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes