76 Tex. 239 | Tex. | 1890
Both the questions involved in this case are mixed questions of law and fact. Was the deed of Mrs. Davis to Cox delivered by her and accepted by him? And was the money so delivered and accepted ?
When these questions are answered in the affirmative or negative, no other points need be considered.
If she had absolutely conveyed the land and the money to Cox she could not afterwards dispose of the same by gift or will. If she had not parted with the title to the land the will must have effect; and if she had not given and delivered him the $1000, but only intended at one time to do so, then her undisputed gift and delivery of it to the defendant Hubbard must be held to be final and conclusive.
The facts and circumstances of this case show that it was the intention of Mrs. Davis to convey and deliver the title to the land to Cox. She had frequently expressed her desire that he should have the property, and that her relatives should not. The notary was brought to her house so that she might execute the deed and acknowledge it; when the parties were q,ll present for this purpose she again stated that it was her desire to deed Cox the property for past services he had rendered her; stated the items and had the notary to cast them up, the result of which was put in the deed as its consideration. He had been living with her for many years attending to her affairs, and an illicit intimacy had grown up between them. Under these circumstances the deed was written at her request, signed and duly acknowledged by her, after which, in her presence, it was handed to Cox by the notary. These acts and declarations, in our opinion, tend to evidence a complete delivery. When her property was mentioned after-wards she stated that she had deeded it to Cox. It has been said that '“the doctrine seems to be settled that where a party executes and acknowledges a deed, and afterwards, either by acts or words, expresses his will that the same is for the use of the grantee, especially where the assent of the grantee appears to the transaction, it shall be sufficient to convey the estate, although the deed remained in the hands of the grantor.” Dill, on Deeds, sec. 262. The foregoing extract might not be the law of all cases. Every case must depend upon the facts and circumstances attending it, and the relations of the parties. We think there must be an intention to deliver, and there must be acts tending to show an execution of that intention.
There was- evidence supporting the court’s finding, that Cox accepted the deed. He in fact received it from the hands of the notary immediately after its execution and acknowledgment, in response to the delivery and intent to deliver by the grantor, and this in her presence. He put the deed away in a box with other papers belonging to him, containing old wills of Mrs. Davis. He claimed the box, locked it, put it away in a wardrobe on the place, which he also locked. The key, it is true, was kept by Mrs. Davis with other keys tied together under her pillow, but the parties lived together in the same house, and the court might well have concluded that under such circumstances the fact that she carried
The next question is, was Mrs. Davis’s intention to give the $1000 to Cox finally executed and carried into effect?
The testimony upon this subject, besides that of Cox himself, is that •of Baker the notary, and J. C. Brown.
Baker says he was over at Mrs. Davis’s house two days after the execution of the deed, when J. C. Brown paid her $1200 on land he had purchased from her. He says: “When Brown paid her the money she said she intended to take this money and use it for what she needed and whatever was left of it she intended to give to Cox.” She was very sick at the time and did not expect to live. She and Brown then had some conversation about a will, and she remarked, “I do not see the necessity of making a will as I have already given everything to Cox.” Brown told her it would be better, and she finally executed the will.
Brown testified that when he went over to pay her for the land and give his note for the balance, she told him 'she was going to give the $1200 to Cox. At this time she said she had already made a deed to Cox for the land. Brown advised her to make a will to that effect, as at her death her relations might attack the deed. She then made a will leaving to Cox all her property, real and personal.
Cox’s evidence shows that she gave and delivered to him the $1000 as alleged, but the evidence being objected to by defendant was allowed to go in—the trial being before the judge—but the judge who made up the statement of facts (the parties failing to agree), in his certificate thereto, says he did not consider Cox’s testimony relating to transactions and conversations with Mrs. Davis. Cox also testified that when she gave him the money he put it in the box with the deed and locked it in the wardrobe. This testimony was also objected to. We are in doubt as to whether the court considered this a transaction with Mrs. Davis. We think no part of it was admissible. The court may have inferred from the fact that Mrs. Davis had expressed her intention to give Cox the money, and the fact as stated by him that he had possession of it, that she had actually given and delivered it to him. We can not tell exactly what evidence of Cox the court did consider. At all events, leaving out such of the evidence of Cox as should have been excluded, we are not satisfied with the conclusion of the learned trial judge as to the delivery
We conclude the judgment of the lower court should be affirmed in so far as it adjudged the land to plaintiff, and reversed in so far as it adT judged a recovery of the money by him, and that judgment be rendered in favor of defendant Hubbard for the 81000 sued for, so that plaintiff take nothing by his suit for the money.
Reversed and rendered.
Adopted February 18, 1890.