Diehl v. Fowler

30 S.W. 1086 | Tex. App. | 1895

Under the facts in this case as disclosed by the record, we have been unable to reach any other conclusion but that the deed executed to Fowler was in legal effect delivered to him. It appears from the facts that Scarborough was the intermediary, selected by both Diehl and Fowler, to whom the deed was delivered in order to be handed over to Fowler. Fowler was notified that Scarborough had the deed, and promised to come and get it, and we think, under the understanding between the appellee and the appellant at the time the deed was executed, and the circumstances connected with its delivery to Scarborough before and after that time, establishes in legal effect a delivery to Fowler. The transaction was not such as is embraced within the meaning of the statute of frauds; but as to this issue, it was not raised by the pleadings in the case (53 Tex. 14; 5 Tex. 552 [5 Tex. 552]; 56 Tex. 299; 82 Tex. 394 [82 Tex. 394]), and, under the pleadings, this issue was not before the court. The evidence shows, without contradiction, that the deed in question was executed for the purpose of satisfying the note sued on. The consideration for the deed, as appears from the facts, was the satisfaction and payment of this note. It does not appear from the evidence that appellant has sustained any damages by reason of the levy of the attachment, otherwise we would reverse and remand the case, so that the matter of damages might again be passed upon. But in view of the entire facts as stated by the record, we think it best to here reverse and render judgment in favor of the appellant, and it is so accordingly ordered, that the plaintiff below (appellee here) recover nothing against the appellant, and that appellant go hence with his costs.

Reversed and rendered.