The judgment of the district court includes findings (supported by evidence) that plaintiffs in error, and those under whom they claim, had and held continuous, peaceable, exclusive, and adverse possession of the land in controversy, and paid taxes thereon, for a period of more than 10 years immediately antecedent filing of the suit. Those findings have not been complained of or challenged by any party to the suit, nor does anything in the opinion of the honorable Court of Civil Appeals (
The apparent title and rights thus ac
The comparability of an escrowed deed, finally delivered by the holder prior to performance of the named conditions, and a forged deed, rests, of course, upon nonintent of the granto.r or those in his stead. This at once suggests that the absolute lack of effect may not, inexorably, be the same in the one case as in the other. Eorgery presents an instance where the owner of the land, or his privies, are wholly absent, and the noneffect is lacking ab initio; there is no possible ground for implications, supplementary, consent, waiver, estoppel, etc., to supply operative force. An escrow, contrarily, exhibits an agreement having some effect from the beginning and originally vesting a species of equitable title in the grantee. Lynn v. McCoy (Tex. Civ. App.)
There is here a finding by the jury of relation to the escrow and delivery, but not of controlling effect. In response to the first special issue submitted to it, the jury answered that Lewis & Ellerd “failed to’place on any part of 26% acres of land described in the contract the machinery necessary for boring for oil, * * * and that within said six months work on said well was not begun as provided for in said contract.” This finding, of course, establishes actual nonperformance of the escrow conditions, and if it stood alone, under the general rule mentioned, the entire lack of force in the delivery would be a resultant. Measured by the original contract itself, the sole condition of final delivery was that whose nonexistence is thus established. The finding, however, does not mean that some machinery, etc., was not placed on the land, or that some work was not begun, within the six months’ period, and the record, without dispute, shows that some machinery, or tools, were thus placed and some work was done. The testimony of El-lerd, McCullough, and Lewis is to the effect that the derrick had been built and machinery installed, etc., and work commenced within the period; the dispute of their testimony is to be found in -that of Jonathan Pickett, one of the defendants in error, and he testified to the existence of some tools and some work there within the period. The dispute is as to the extent, and not as to the existence, of the work and machinery. We mention .this, not because we have any concern with the weight of the testimony or in finding facts on conflicting evidence, but for the purpose of showing that, at the time of the delivery of the deed, there did exist visible evidence of some effort to comply with the condition named. Whether the effort was sufficient, or not, was the thing of which Mr. Brown (the depositary), and those who caused him to make delivery, had to judge' at the. time. The evidences of the effort, whatever it may have been, existed on the
The tract of land was situate within 800 yards of the courthouse at Eloresville and within a few hundred yards of the residences of all the defendants in error, and at all times was open to their observation. At least one of them (Jonathan Pickett), who manifested great interest at the time, was on and across the tract every day for a long time immediately before the delivery and afterward. The ease is not one where the depositary, without notice to the grantor or his privies, judged the matter of performance, vel non, and made delivery, or where in making the delivery he acted as agent of the grantee. On the contrary, the petition avers, Mr. Brown (the depositary), Mr. Murray (the independent executor), and Mr. Ballard (as “agent and attorney of plaintiffs”) represented all of the defendants in error in making the delivery. Mr. Ballard, personally, had a substantial interest in the matter and recovered five acres of the tract on that interest, and represented himself, also, in the delivery. Mr. Murray had authority to represent all of them except Ballard by reason of his independent executorship (Boy v. Whitaker,
The nature of the actual investigation made by Mr. Murray et al. is not shown, but a reasonable one would have disclosed the facts, especially since Ellerd’s statement mainly was one of opinion upon which he was predicating the right to the deed, and since the other parties took some time to satisfy themselves whether his claim was right or wrong. Moreover, in view of the independent “investigation,” reliance upon whatever Ellerd may have said is not shown. This is indicated by the fact of the “investigation” by Mr. Murray and Mr. Ballard. Mr. Brown did not testify. Mr. Ballard testified, but said he could not recall whether he went down to the tract of land or not, and:
“As to what Ellerd said to me at the time the deed and contract were delivered, about having complied with his contract, I can’t say that I remember that he said anything about that; if he did, I don’t remember anything about it. I hesitated about delivering those to him, my recollection is, because he had failed in the contract, but I can’t remember whether he said he had complied with the contract or not at that time. * * * Don’t remember what Ellerd said about having complied with his contract or not having complied with it; it looks to me l%e if he had complied with it there wouldn’t 'have been any hesitation about turning over the papers. That is so long ago, these things have escaped my mind.”
Mr. Murray’s statement about reliance is summarized in these excerpts from his testimony:
“I think I relied upon Ellerd’s statement more than anything else, that the contract had been complied with.” “We relied mostly on Mr. Ellerd.”
It is proper, here, to say that Ellerd is alleged to have made false and fraudulent promises as to what he (or Lewis & Ellerd) would do in the future about thoroughly testing the land for oil or gas, and that this allegation has support in the evidence and findings. But this “fraud” has no relation to the conditions of delivery named in the escrow contract, and on the question of whether the actual delivery was wholly without effect it may, properly, be laid to one side.
Whatever the extent of the work done and appliances established theretofore, Lew'is & Ellerd shortly subsequent to delivery of the deed, and at an expense of more than $5,009, drilled a well on the land to a depth of 600 or 700 feet. This, was done without objection fr.om any of the parties; in truth, it was done with their knowledge, acquiescence,
The delivery was made after precedent notice to those adversely interested; they had means of ascertaining whether the prescribed conditions had been fulfilled; they made investigation, and directed and consented to the delivery. In its delivery, and in the grantees’ conduct under it, they subsequently acquiesced. The delivery was not, therefore, without effect; it passed the legal title. Burnett v. Continental State Bank, supra; Mantón v. San Antonio, supra. The deed, thus delivered, was not void in the absolute sense, or otherwise comparable with a forged deed. It may have been voidable at the suit of those at interest seasonably brought, but absent that attack it presented all the elements of a deed and record title.
If “color of title,” as the term is used in the three-year statute (articles 5507, 5508), had the signification attributed to it by many courts ,(e. g. Wright v. Mattison,
But a different result is accomplished by the five-year statute (article 5509) in its application to the facts. The apparent muniment of title there spoken of is “a deed or deeds duly registered.” The statutory function of such “a deed or deeds” has no relation to the real title; it is merely to give notice “of the adverse claim to the land” and, thus, to aid “possession.” Roseborough v. Cook,
“The title by limitation ripens, primarily, only because, in such manner and for such period of time as the different statutes require, notice is given of the hostile claim”: (a) “Under the three years’ statute, it is afforded by possession under title or color of title”; (b) under the five years’ statute, it is given by possession, the payment of taxes, and the registration of a naked deed”; (c) “under the ten years’ statute, simply by possession.” Roseborough v. Cook, supra. It is. true, of course, that a naked trespasser may acquire title under the ten years’ statute, but the fact that the occupier may claim rights-under a deed, or other muniment of title, also does not affect the operation of the law, except in cases where more than 160 acres of land is involved. Moses v. Dibrell,
The assignments of error based upon rulings by the trial court and the honorable Court of Civil Appeals contrary to what has been stated above must, therefore, be sustained.
The rulings that plaintiffs in error are estopped to plead (or claim title by) prescription were erroneous, also, at least as to some of the defendants in error. The bases of that estoppel, so far as there is any evidence to furnish them, are that Ellerd, from time to time, after the delivery of the deed promised and represented that he (or Lewis & Ellerd) intended to and would more thoroughly test the land for oil or gas if (some of) the defendants in error would be patient and not sue. So far as the record shows, 'such representations were not made or communicated to, or relied upon by, some of the defendants in error — namely, Murray, Ballard, the Davenports, Msie Pickett, Helen Avis Pickett, and Mary Vance Pickett. We seriously doubt the sufficiency of the averments, or of the proof, to present an issue of estoppel even in favor of Mrs. Pickett and Jonathan Pickett, for one claiming suspended operation of the statutes of limitation, or estoppel against their apparent effect, must have not ignored the requirements of due care and blindly relied upon a. situation as being what it seemed rather than as being what it in reality was. First State Bank of Bangs v. Visart (Tex. Civ. App.)
We believe the record exhibits a situation wherein “the justice of the case demands another trial,” and because of this, in its relation to what has been said above, we recommend that the judgments of the district court and of the Court of Civil Appeals be reversed, and that the cause be remanded for further trial.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
We approve the holding of the Commission of Appeals on the questions discussed in its opinion.