Walker, P. J. Com. App.
. . . Aside from the foregoing view, which is decisive of the result of this appeal, we think that there are other grounds presented by appellant' for revision having respect to questions arising on the merits of the trial of the two chains of title under which the parties respectively claimed, which disclose errors for which the judgment ought to be reversed.
It is assigned as error that the court erred in its fifth conclusion-of fact, for the reason that there was no evidence tq show that the deed to Miller had ever been delivered to him by the executors of H. L. Kinney, deceased. The delivery of the deed was, of course, essential to its validity. Dikes v. Miller, 24 Tex., 417. It may be an. actual or constructive delivery; and if it be not actually delivered to the grantee or his authorized agent, it is essential to its validity to prove notice to the grantee of its execution and such [557]*557additional circumstances as will afford a reasonable presumption of his acceptance. Tuttle v. Turner, 28 Tex., 759.
The delivery of a deed may be established by circumstances as well as by direct proof. Van Hook v. Walton, 28 Tex., 59.
In this case, whatever proof existed of the delivery of the deed in question was circumstantial. The evidence does not show that it was ever seen elsewhere than among the papers of B. F. Heal, one of the executors, after his death in 1874, and it was never recorded. The defendant testified that “ he had heard Miller and Heal and others say and speak of the lot as having been sold to Miller by the executors of Kinney.” He also testified that after Miller bought he went into possession of the lot and was in possession when he (defendant) bought. The witness specified the contents of the deed in question, identifying them as being substantially the same in its recitals as that of the plaintiff, except as to dates, consideration and other like details. In addition to this evidence the defendant introduced certain memoranda found among the papers of B. F. Neal, deceased, -which are as follows, viz.:
“ Samuel Miller, in account with B. F. Heal, provided the contract had been carried out according to his proposition:
Lot 1 in block 36......................................... §250.00
Lot 2 in block 36.......................................... 190.00
Paid Dowd for lumber.................................... 13.90
Drayage to Bee, §454.40................................... .50
do 25c., 25c., 50c., for other hauling................. 1.00
100 feet gallery removed.................................. 5.73
260 “ “ “ .................................. 6.50
Paid Rains and assistants (see pp. 28-35)................... 15.12
- §482.75
“ Such would have been the condition of matters between Miller and myself had he carried out his original proposition.
Now Miller advanced §250.00...... §250.00
I have returned him...................................... §50.00
Paid Fitzsimmons for transcript........................... 1.50
Paid for book............................................. .50
- 62.00
Balance due Miller...................... §198.00
“ Which I want him paid out of the above lots.
“How, when appellee occupied the lots the materials on the ground and labor done thereon are as follows:
Sills as per Dowd’s bill.................................... §13.90
Posts §5, and setting posts and frame $10.................. 15.00
Window sash and frame (very low)........................ 4.00
§32.90
[558]*558“ COL. SAM miller’s account.
Lot No. 1, block 36........................................$250.00
Lot No. 2, block 36........................................ 190.00
Paid sundry items for material and cash................... 93.75%
- $533.75%
By cash per book.......................................... 250.00
$283.75”
The deed being found in the grantor’s possession was a circumstance tending, unexplained, to negative the fact of delivery to the grantee. It was a fact consistent with the grantor’s having made the same in anticipation of a future delivery of it, accordingly as circumstances might require or incline him, but which had never been carried into effect.
The other facts tended to show that a contract of sale with Miller of the lot had been made on terms of some kind, and that Miller had taken possession under such contract with the knowledge and consent of the executors, but they are not sufficient to establish the fact that Miller had complied with those terms, and that the deed had been executed and delivered to him in pursuance of the contract of sale. The accounts or statements of items of account in evidence, considered in connection with the accompanying memoranda, explanatory of them, do not relieve the subject from obscurity and doubt as to what were the propositions and terms pending between Miller and Heal in regard to the sale of the lot; nor do they show whether they were complied with, nor whether the parties made in lieu of the original proposition of Miller any new contract which had been fulfilled.
If, however, it might be concluded that there was such a contract with which Miller had so far complied as to entitle him to a deed to the lot, the possession of such an instrument by Heal would not import a delivery, actual or constructive, in the absence of circumstances to show that its formal delivery to Miller had been, with the knowledge of the parties, dispensed with or waived, so that Heal would be constituted a depositary of it for the benefit of Miller.
If it had ever been delivered to Miller, the subsequent possession of it (as for safe-keeping or other like reason of convenience) by Heal would not affect the question. As was said in Hart v. Rust, 46 Tex., 571, “The fact that the deed was subsequently returned to the grantor, to be preserved and taken care of by him for the grantee during his minority and contemplated absence in the army, neither negatives or disproves its previous delivery, or annuls or destroys its effect to pass the title of the property embraced in it, as [559]*559between the parties to it ” (4 Kent, 455, 456, and notes). Hillebrant v. Brewer, 6 Tex., 49.
There being, then, no valid deed to Miller, the defendant did not become invested by Miller’s deed to him with title or with the apparent legal title to the lot in controversy, and we deem it unnecessary to discuss the merits of any of the other grounds assigned as error, and we are of the opinion that the judgment ought to be reversed.
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Walker, P. J. Com. App.
. . . Aside from the foregoing view, which is decisive of the result of this appeal, we think that there are other grounds presented by appellant' for revision having respect to questions arising on the merits of the trial of the two chains of title under which the parties respectively claimed, which disclose errors for which the judgment ought to be reversed.
It is assigned as error that the court erred in its fifth conclusion-of fact, for the reason that there was no evidence tq show that the deed to Miller had ever been delivered to him by the executors of H. L. Kinney, deceased. The delivery of the deed was, of course, essential to its validity. Dikes v. Miller, 24 Tex., 417. It may be an. actual or constructive delivery; and if it be not actually delivered to the grantee or his authorized agent, it is essential to its validity to prove notice to the grantee of its execution and such [557]*557additional circumstances as will afford a reasonable presumption of his acceptance. Tuttle v. Turner, 28 Tex., 759.
The delivery of a deed may be established by circumstances as well as by direct proof. Van Hook v. Walton, 28 Tex., 59.
In this case, whatever proof existed of the delivery of the deed in question was circumstantial. The evidence does not show that it was ever seen elsewhere than among the papers of B. F. Heal, one of the executors, after his death in 1874, and it was never recorded. The defendant testified that “ he had heard Miller and Heal and others say and speak of the lot as having been sold to Miller by the executors of Kinney.” He also testified that after Miller bought he went into possession of the lot and was in possession when he (defendant) bought. The witness specified the contents of the deed in question, identifying them as being substantially the same in its recitals as that of the plaintiff, except as to dates, consideration and other like details. In addition to this evidence the defendant introduced certain memoranda found among the papers of B. F. Neal, deceased, -which are as follows, viz.:
“ Samuel Miller, in account with B. F. Heal, provided the contract had been carried out according to his proposition:
Lot 1 in block 36......................................... §250.00
Lot 2 in block 36.......................................... 190.00
Paid Dowd for lumber.................................... 13.90
Drayage to Bee, §454.40................................... .50
do 25c., 25c., 50c., for other hauling................. 1.00
100 feet gallery removed.................................. 5.73
260 “ “ “ .................................. 6.50
Paid Rains and assistants (see pp. 28-35)................... 15.12
- §482.75
“ Such would have been the condition of matters between Miller and myself had he carried out his original proposition.
Now Miller advanced §250.00...... §250.00
I have returned him...................................... §50.00
Paid Fitzsimmons for transcript........................... 1.50
Paid for book............................................. .50
- 62.00
Balance due Miller...................... §198.00
“ Which I want him paid out of the above lots.
“How, when appellee occupied the lots the materials on the ground and labor done thereon are as follows:
Sills as per Dowd’s bill.................................... §13.90
Posts §5, and setting posts and frame $10.................. 15.00
Window sash and frame (very low)........................ 4.00
§32.90
[558]*558“ COL. SAM miller’s account.
Lot No. 1, block 36........................................$250.00
Lot No. 2, block 36........................................ 190.00
Paid sundry items for material and cash................... 93.75%
- $533.75%
By cash per book.......................................... 250.00
$283.75”
The deed being found in the grantor’s possession was a circumstance tending, unexplained, to negative the fact of delivery to the grantee. It was a fact consistent with the grantor’s having made the same in anticipation of a future delivery of it, accordingly as circumstances might require or incline him, but which had never been carried into effect.
The other facts tended to show that a contract of sale with Miller of the lot had been made on terms of some kind, and that Miller had taken possession under such contract with the knowledge and consent of the executors, but they are not sufficient to establish the fact that Miller had complied with those terms, and that the deed had been executed and delivered to him in pursuance of the contract of sale. The accounts or statements of items of account in evidence, considered in connection with the accompanying memoranda, explanatory of them, do not relieve the subject from obscurity and doubt as to what were the propositions and terms pending between Miller and Heal in regard to the sale of the lot; nor do they show whether they were complied with, nor whether the parties made in lieu of the original proposition of Miller any new contract which had been fulfilled.
If, however, it might be concluded that there was such a contract with which Miller had so far complied as to entitle him to a deed to the lot, the possession of such an instrument by Heal would not import a delivery, actual or constructive, in the absence of circumstances to show that its formal delivery to Miller had been, with the knowledge of the parties, dispensed with or waived, so that Heal would be constituted a depositary of it for the benefit of Miller.
If it had ever been delivered to Miller, the subsequent possession of it (as for safe-keeping or other like reason of convenience) by Heal would not affect the question. As was said in Hart v. Rust, 46 Tex., 571, “The fact that the deed was subsequently returned to the grantor, to be preserved and taken care of by him for the grantee during his minority and contemplated absence in the army, neither negatives or disproves its previous delivery, or annuls or destroys its effect to pass the title of the property embraced in it, as [559]*559between the parties to it ” (4 Kent, 455, 456, and notes). Hillebrant v. Brewer, 6 Tex., 49.
There being, then, no valid deed to Miller, the defendant did not become invested by Miller’s deed to him with title or with the apparent legal title to the lot in controversy, and we deem it unnecessary to discuss the merits of any of the other grounds assigned as error, and we are of the opinion that the judgment ought to be reversed.
Upon the question of title the supreme court, proceeding to render such judgment as ought to have been rendered below, might well proceed to adjudge the plaintiff entitled to recover the lot under the evidence in this case, but in view of the issue as to improvements made in good faith, and of the evidence showing that Miller and the defendant had placed improvements on the lot, we deem it proper to recommend that the cause be remanded for further proceedings.
Reversed and remanded.
March 20, 1885.
The within and foregoing opinion examined and adopted so far as it holds that there was error in the finding of the court below that the deed to Miller from the executor of Kinney’s estate had been delivered; upon this ground alone the judgment below is reversed and rendered for appellant. We give no opinion upon the first question discussed in the report of the commissioners.
Willie, C. J.
The discussion of the first question considered by the commission of appeals, not having been approved, has been omitted in the opinion as published.— Reporter.