Cutbirth v. Snowden

SUTTON, Justice. Appellants instituted this suit against ap-pellee. to remove cloud on their title to an interest in some ten sections of mineral land in Midland, Glasscock and Upton Counties, and to have cancelled and held of no effect a certain agreement by which they agreed to sell said land to appellee, and a certain royalty deed executed 'by them which purported to convey said land to appellee. These instruments were dated January 17, 1951. : Defendant filed a cross-action in which he made -the Midland National Bank, hereinafter referred to as “the bank” a party defendant, and in which by the statutory action of trespass to try title he sought to recover title and possession of the land, and in the alternative sought specific performance of the agreement of January 17, 1951, and to require the bank to deliver a royalty deed which was in its possession to him. , The bank answered that it was named escrow agent under the agreement of January 17, 1951, and had in its pos [478] session the deed and $20,000 therein referred to, and was a disinterested stakeholder ; it tendered the deed and money into court and prayed that it be dismissed with reasonable attorney’s fees. Trial to the court without a jury resulted in a judgment that plaintiffs take nothing and ordering the clerk to pay to plaintiff Mary Ethel Cutbirth the $20,000 tendered into court by the bank and to deliver the royalty deed to defendant Snowden. The bank was awarded $100 as attorney’s fee, which was taxed as costs against plaintiff. The agreement of January 17, 1951, around which the controversy centers, is reproduced: “The attached royalty deed, made a part hereof, executed on the 17th day of January, 1961, by and between Lige Cutbirth and wife, Mary Ethel Cutbirth, hereinafter called seller, and James H. Snowden, hereinafter called buyer, together with draft of seller drawn on buyer for Twenty Thousand Dollars ($20,000.00), is herewith deposited in The Midland National Bank of Midland, Texas, in escrow subject to the following terms and conditions: “The seller agrees to forthwith prepare and deliver to the buyer, for examination by his attorney, a complete abstract of title to the 'land described in the royalty deed, brought down to date, and to allow ten days from date of receipt of abstracts for the examination of said title by the attorneys for buyer. In this connection all abstracts must be delivered' to buyer within ten days hereof. “If title to said royalty, as covered by the said royalty deed, is good as shown by said abstracts, the buyer shall accept said royalty deed and same shall be delivered to him and the draft shall be delivered to seller. “If the title is not good as shown by said abstracts the seller shall have five days after the receipt of the opinion of the attorney for the buyer in which to cure the defects in the title pointed out in such opinion, and agrees to use reasonable diligence to cure same and if such defects be cured within the five day period the transfer shall be consummated by delivery as above provided. “If the title is not good and cannot be made good within the five day period as above specified, this contract shall be at an end and the royalty deed shall be cancelled' and the draft hereto attached shall be returned to the buyer and all parties hereto shall be released, provided, however, buyer shall have the right at his option to waive any defects in title and accept the royalty deed, in which event the draft shall be delivered to seller. “The bank herein designated as escrow agent is authorized and directed to send said royalty deed and draft to any bank in Fort Worth, Texas, named by buyer for inspection by buyer, and said bank in the event of acceptance by buyer may collect said draft and make delivery of the royalty deed. “This agreement is executed in triplicate, one original of which, with the royalty deed and draft, is deposited with the said escrow agenit, and the other two, with an exact copy of said deed attached to each as a part thereof, are delivered to the parties hereto respectively. “/s/ Lige Cutbirth “/s/ Mary Ethel Cuitbirth “Seller “/s/ Jas. H. Snowden “Buyer.” This instrument was not acknowledged by any of the parties thereto. The royalty deed referred to purports to convey 200/6428.5 interest in the minerals under the designated sections of land lying in Midland, Glasscock and Upton Counties. It has a joint acknowledgment by Lige Cutbirth and Mary Ethel Cutbirth, husband and wife, certified in the statutory form. It is stipulated that the lands described in the agreement and deed were the separate estate of Mary Ethel Cutbirth on and before January 17, 1951. [479] Appellants have presented six points, which we think unnecessary to detail. Their substance is that the escrow agreement just quoted of January 17, 1951, was not binding on Mrs. Cutbirth because it was not privily acknowledged by her and further because it was executory and since the deed was to be delivered only in accordance with the terms of the agreement, Mrs. Cutbirth had the right to revoke the agreement and to' recall the deed at any time before the defendant accepted it and paid the $20,000; that Mrs. Cutbirth did revoke the agreement and procured the deed from the bank before defendant had paid any money to the bank. It is stipulated by the parties: “ * * * that under the terms of that agreement there was escrowed with said bank the royalty deed referred to therein, and a draft for twenty thousand ($20,000) Dollars; that on the 19th day of February, 1951, the deed, escrow agreement and draft were withdrawn by John Perkins as an attorney for the Cutbirths and that such instruments were delivered back to the bank on the 21st day of the same month at the request of the Bank, the instruments being returned by the Cutbirths subject to a letter of instructions from them to the Bank, this letter having accompanied the instruments; that on the 19th of February, 1951, the First National Bank of Ft. Worth, Texas, at the request of James H. Snowden wired to the Midland National Bank of Midland, Texas, twenty thousand ($20,000) Dollars, the money being wired by Snowden to the Bank after the escrow agreement had been withdrawn and revoked by Mrs. Cut-birth. * * The letter of instructions referred to advised the bank that Mrs. Cutbirth did not recognize the escrow agreement as having any validity, and the bank was not authorized to deliver the deed under it. The royalty deed deposited with the bank .was duly executed and in usual form and standing alone sufficient in all respects to convey the mineral interest therein described. In the very outset plaintiffs are confronted with a decision which is as nearly parallel with the instant case as can well be found in any case which determines the case adversely to them and supports the judgment and determination of the trial court. Bott v. Wright, 62 Tex.Civ.App. 632, 132 S.W. 960, 961, (no writ history). The opinion is authored by an eminent judge and is by a count of equal dignity and authority as this, and unless it is clearly wrong it is thought this court ought not to put itself in conflict with it, but if wrong the Supreme Court should overrule it. The transaction in, the instant case is thought to be a typical escrow, then, as held in Bott v. Wright, supra, it cannot be revoked at the will of either party. See also 17 T.J., page 90, Sec. 4 and the cases there cited. In cases of escrow the equitable title passes, 17 T.J. p. 91, Sec. 5; Alworth v. Ellison, Tex.Civ.App., 27 S.W.2d 639 (c. r.); Cowden v. Broderick, 131 Tex. 434, 114 S.W.2d 1166, 117 A.L.R. 61 (T); and the .title upon performance of the conditions relates back to the time when the deed was placed in escrow; last case cited 114 S.W.2d (1-4) page 1169. It is said in Pickens v. Bade, 129 Tex. 610, 104 S.W.2d 482(T) (1-3) page 485, that the conveyance to be effective need only convey the whole or a part of her title. The Supreme Court said in Blakely v. Kanaman, 107 Tex. 206, 175 S.W. 674, bonds for title, where the purchase money is paid and! possession delivered, and mortgages of the separate property will be enforced as a species or another kind of conveyance. Such is not true with respect to the homestead, because of constitutional provisions and the policy of the courts long adhered to, to throw every possible safeguard around the homestead, providing, as the late Dean John C. Townes often said to his classes, a place where mothers in security may teach their children to, love and revere God and country. In virtue of the authorities cited it is thought the royalty deed escrowed in the instant case and thereby put beyond the control of the wife [480] which conveyed the equitable interest or title in the mineral interest is a sufficient conveyance under the statute and the trial court’s judgment correct.