Stonewall v. McGown
231 S.W. 850
Tex. App.
1921
Check Treatment
FLY, C. J.

This is a suit for $620.62, left by appellant, through his agent, M. L. Har-key, with appellee, for certain purposes, and which it is alleged had been misappropriated by appellee. The suit is based on the following instrument in writing:

“San Antonio, Tex., Jan. 3, 1917.
“Received of M. L. Harkey six hundred twenty and e2/xoo dollars, to be applied on liens against farms 57, 58, 59, 60 in section 165 of the Cross S. ranch in Dimmit county, Texas. It is agreed and understood that this money is to be held in escrow until releases are obtained from the Pratt & Hays lien, Cross S. Farming Co. V. L. lien, and the Bankers’ Trust Co. V. L. lien, and a guaranty policy on these farms from Stewart Title Guaranty Co., if same can be obtained at $10.00; otherwise Mr. Harkey will pay difference.
“[Signed] Floyd McGown,
“Receiver Cross S. Farming Company.”

The cause was tried by the county judge, and judgment rendered in favor of appellant for $10 and all costs.

[1] An escrow is a written instrument which by its terms imports a legal obligation, and which is deposited by the grantor, prom-isor, or obligor, or his agent, with a stranger or third party, to be kept by the depository until the performance of a condition or the happening of a certain event, and then to *851 be delivered over to tbe grantee, promisee, or obligee. 10 R. O. L. § 2, p. 621. Being derived from a French word meaning a bond or writing, and so always used in English, it could have no application to money placed in the hands of another to be applied as directed by the owner.

[2] The facts merely tend to show a misappropriation of funds deposited for a certain purpose. The instructions were in effect, as evidenced by, the receipt, that appel-lee should use the money in paying off certain indebtedness and in paying for a guaranty of title from a certain company. It may be that appellant may have intended that the money should be used in obtaining the releases and getting a guaranty of title, and if each and all could not be obtained then to be returned to the depositor, but it is not apparent how the guaranty of title could have been procured without first paying off the liens. Even though such was the intention of appellant, he is in no position to recover the money, for the reason that the liens on his land have been paid off, and the testimony shows that he has a good marketable title to the land. It would be unconscionable to permit him to have his debts paid, his title to the land perfected, and then recover all the money that was paid out by appellee on the land. Equity and good conscience would estop him from a recovery of more than the damages suffered by him, and under the facts of the case such damages could not have been more than the $10 in appellee’s hands after discharging the liens.

Appellant does not claim that all the liens .were not paid off, nor that his title to the land is defective, nor does he offer to do equity in regard to the matter. He wants to keep his land, and recover the purchase money paid out by him to obtain title to the land. This will not be permitted.

The judgment is affirmed.

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