26 Tex. 142 | Tex. | 1861
The deeds of the 6th of January, 1853, were executed and delivered to the parties respectively. The effect undoubtedly was to vest the title in accordance with the terms of the deeds. That effect, it is conceived, could not be obviated by the parol contemporaneous agreement that they should not be probated for registry until Renfro should perfect the title to the Sigler labor. The parties may not have been aware that such was the effect of the delivery. How that was, we are not certainly informed;
But if such evidence can be received where the deed is thus delivered to the party, and not to a third person, the evidence in this case is not deemed to prove that it was the understanding of the parties that the deed should not take effect at the time of delivery. Such an intention may, perhaps, be inferred; but it is an inference which the court would not be disposed to adopt where there is doubt as to the admissibility of such an inference upon legal grounds, and the evidence is not express to the point.
Although the transaction was in effect an exchange of lands, it Was not a technical exchange, and it seems to be the doctrine of the adjudged cases that the effect of such an exchange—that is, that if one party is evicted from the - land conveyed to him, he may re-enter upon his own land which he had given in exchange— does not attach to a case like the present. (2 Hilliard on Real Property, 380; Id., 314, 315; Harland v. Eastland, Hardin, (Ky.) R., 590; Cass v. Thompson, 1 N. H., 65.)
It is unnecessary to revise the rulings of the court upon instructions to the jury. Since the defence to the action cannot be maintained, these rulings are immaterial.
The judgment is affirmed.
Judgment affirmed.