
    BOTT v. WRIGHT et al.
    (Court of Civil Appeals of Texas.
    Nov. 12, 1910.)
    1. Husband and Wiee (§ 47) — Wife’s Separate Property — Conveyance to Wipe.
    The legal effect of a conveyance of land by a husband to his wife was to invest in her the separate interest in the land regardless of whether the husband had paid therefor the separate funds of his wife or community funds or both.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 232-241; Dec. Dig. § 47.]
    2. Husband and Wife (J 187) — Disabilities of Coverture — Contract to Sell Land.
    Under Rev. St. 1895, art. 2970, authorizing a wife to contract debts for necessaries furnished herself or children and for expenses which may have been incurred by her for the benefit of her separate property; a wife has no legal capacity to make a contract to sell her separate property, either directly or indirectly, or to authorize her husband to do so, where there is no evidence that the contract is for necessaries or for the benefit of her separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 722, 723; Dec. Dig. § 187.]
    3. Husband and Wife (§ 138) — Agency of Husband for Wife — Delivery of Deed.
    Where a wife surrenders to her husband a deed to her separate property, duly made and acknowledged, for the purpose of delivery, authority in the husband is to be implied to make such reasonable stipulations as to the delivery as shall not be violative of her instructions or in fraud of her rights.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 524-537; Dee. Dig. § 13S.]
    4. Escrows (§ 8) — Withdrawal of Deed by Grantor.
    Where grantors deposit a deed with a third person, to be delivered to the grantee, on the payment of the consideration named in the deed, the grantors have no right to withdraw the deed without the grantee’s consent until after the expiration of a reasonable time, notwithstanding a time limit for the payment of the consideration in the contract for sale of the land.
    [Ed, Note. — For other cases, see Escrows, Cent. Dig. §§ 9, 10; Dec. Dig. § 8.]
    5. Husband and Wife (§ 194) — Conveyance of Property — Acknowledgment by Wife.
    A married woman is not bound by her deed of land till after due acknowledgment thereof before an officer.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 726; Dec. Dig. § 194; Acknowledgment, Cent. Dig. §§ 19-21.]
    6. Husband and Wife (§ 192) — Conveyance of Property — Delivery of Deed in Escrow.
    A married woman being bound by her deed of her separate property after final delivery to her grantee, she is bound after it has by her consent been delivered in escrow to the same extent as other persons.
    [Ed. Note. — For other cases, see Husband and Wife, Dee. Dig. § 192.]
    7. Escrows (§ 8) — Withdrawal, of Deed by Grantor.
    That an order by a grantor to a depositary for the return of the deed delivered in escrow was some time after the time limit for payment of consideration by the grantee named in the contract of sale is not conclusive that the withdrawal 'by the grantor was authorized.
    [Ed. Note. — For other cases, see Escrows, Dec. Dig. § 8.]
    8. Specific Performance (§ 123) —Questions for Jury.
    In an action for specific performance of a contract for the sale of land, evidence held to present questions for the jury whether the withdrawal of a deed by the grantor from a depositary was authorized, or grantee consented to the return of - the deed, or had deferred payment beyond a reasonable time for the examination or correction of the title.
    [Ed. Note. — For other cases, see Specific Performance, Dec. Dig. § 123.] ■ '
    Appeal from District 'Court, Wheeler County; >H. G. Hendricks, Special Judge.
    Action by R. L. Bott against Ida Wright and another. From a judgment in favor of defendants, plaintiff appeals.
    Reversed and remanded. '
    Hoover & Taylor, Lawrence & Sterling, Theodore 'Mack, and Counts & Counts, for appellant. G. W. Mendell, J. B. Reynolds, and B. M. Baker, for appellees.
    
      
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   'CONNER, <3. J.

Appellant instituted this suit for the specific performance of a contract to convey a section of 640 acres of land described in the petition and alleged to be situated in Wheeler county. The contract is as follows:' “Contract made and entered into this 17th day of October, 1907, by and between I. M. Wright, of Kent, Texas, and R. L. Bott, of Humeston, Iowa, witnesseth that the said I. M. Wright has this day sold to R. L. Bott of the following land legal numbers as follows: Section (4) block L, land lying just west of Clay section, for the sum of $5,000, of the following terms: Five hundred dollars cash paid in hand which is hereby receipted for, and forty-five hundred dollars on or before thirty days from this date. I. M. Wright is to deed by warranty deed and furnish abstract showing clear and perfect title, and to send deed and abstract .to the Humeston State Bank, Humeston, Iowa. The warranty deed is to be free and clear of all incumbrance except six hundred and twenty-four dollars back to the state. [Signed] Ida Wright, by I. M. Wright, Agent. R. L. Bott.” After the execution of the contract Ida Wright and I. M. Wright made deed in due form as agreed, and forwarded the same, together with an abstract of title, to the Humeston State Bank, but appellant not having paid the deferred $4,500, appel-lees, on or about December 7, 1907, telegraphed the bank to return the papers, which the bank did within a few days, and appel-lees thereafter sold the land to W. A. Lay-burn, who is sued herein as an alleged purchaser with full notice of appellant’s alleged rights.

The court below gave a peremptory instruction in appellees’ favor on the grounds that Ida Wright was not bound because of her coverture, and that her husband, I. M. Wright, was not bound because the contract showed that he signed as agent only. On a former day, we affirmed the judgment, save that we held I. M. Wright bound for the repayment of the $500 actually received. We so held on the theory that the undisputed facts showed that the land was the separate property of the wife, and that she had recalled tlie deed before its actual' delivery to appellant, and lienee was not bound, although the husband was, and that as to him the recall of the deed amounted to a voluntary rescission, which was justified by the facts, and that he therefore must return the money actually received. On more mature deliberation, however, we are not satisfied with all of the conclusions announced in our original opinion and that opinion is accordingly withdrawn.

Now, therefore, treating the case as an original one, we have concluded that the court erred in taking the case from the jury. We disagree with the contention that Ida Wright was bound by the contract either because of any power in her husband, I. M. Wright, to bind her, or on the ground of a ratification because of her joinder in the deed. It is undisputed that prior to the date of the contract the land had been duly conveyed to his wife by I. M. Wright. The legal effect of this conveyance was to invest in Mrs. Wright the separate interest in the land regardless of whether I. ¡M. Wiright had paid therefor the separate funds of his wife or community funds of both. Callahan v. Houston, 78 Tex. 494, 14 S. W. 1027; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; Clay v. Power, 24 Tex. 305. This being true and there being no evidence that the contract was for necessaries or for the benefit of her separate property, Mrs. Wright had no legal capacity to make the contract, either directly or indirectly, or to authorize her husband to do so. Rev. St. 1895, art., 2970; Speer’s Law of Married Women, § 46; Noel v. Clark, 25 Tex. Civ. App. 136, 60 S. W. 356; Lynch v. Elkes, 21 Tex. 229; Stroter v. Brackenridge, 102 Tex. 386, 118 S. W. 634; Cannon v. Boutwell, 53 Tex. 626.

Where, however, as there is evidence here tending to show, the wife surrenders to her husband a deed to her separate property duly made and acknowledged, for the purpose of delivery we think authority in the husband is to be implied to make such reasonable stipulations relating to the delivery of the deed to the grantee as shall not be violative of her instructions or in fraud of her rights. See Hughes v. Thistlewood, by the Supreme Court of Kansas, 40 Kan. 232, 19 Pac. 629. This brings us to a consideration of the effect of the deposit of the deed made by appellees in the Humeston State Bank. Save as may be inferred from the contract, the nature of the subject, and the acts of the parties, the purpose and conditions of the deposit, if any, are not disclosed, but we have finally concluded that the evidence as a whole raises the issue of a deposit of the deed with the bank in escrow with direction to the bank to deliver the deed to appellant upon his payment or deposit to appellees’ credit of the remaining unpaid part of the purchase money. If so, then appellees would not have the right to withdraw the deed from the bank without appellant’s consent until after the expiration of a reasonable time notwithstanding the time limit named in the contract. Says Mr. Devlin in his book on Deeds, vol. 1, § 312: “A delivery may be made to a third person conditional on the performance of an act or the happening of an event, whereupon it is to be delivered to the grantee. Such delivery to a third person is called in escrow.” And whether the delivery was in escrow is to be determined from all the facts and circumstances in evidence. Wallace v. Butts, 31 S. W. 687; Gaston v. City, 16 Or. 255, 19 Pac. 127. When so delivered and accepted the depositary becomes in a sense a trustee for both parties to the transaction, and neither may withdraw the deed until the happening of the condition upon which it was deposited, or until after a reasonable time given for the performance of the condition-16 Cyc. 568; Robbins v. Rascoe, 120 N. C. 79, 26 S. E. 807, 38 L. R. A. 238, 58 Am. St. Rep. 774; Steamboat Co. v. Moragne, 91 Ala. 610, 8 South. 867; State Bank v. Evans, 15 N. J. Law, 155, 28 Am. Dec. 400; Hughes v. Thistlewood, 40 Kan. 232, 19 Pac. 629; Baum’s Appeal, 113 Pa. 58, 4 Atl. 461; Hoyt v. McLagan, 87 Iowa, 746, 55 N. W. 18; Gaston v. City, 16 Or. 255, 19 Pac. 127; Bronx Investment Co. v. Natl. Bank, 47 Wash. 566, 92 Pac. 380; Hardin v. Neal Loan Co., 125 Ga. 820, 64 S. E. 755; In re Cornelius’ Estate, 151 Cal. 550, 91 Pac. 329; Bury v. Young, 98 Cal. 446, 33 Pac. 338, 35 Am. St. Rep. 186. Such we think is undoubtedly the general rule, and while our laws have provided certain safeguards to be observed in the disposition of the wife’s separate property, we know of no reason why after the wife, as here, has made and acknowledged a deed with all the formalities of the law, she should not be held bound alike with the husband to the general effect of a delivery in escrow. Until after due acknowledgment of her deed before the officer and until delivery she is not bound. Jones et ux. v. Goff, 63 Tex. 248. But clearly she is bound after final delivery to her grantee, and, as we think, after it has by her consent passed from her control by the quasi or conditional delivery in escrow save under the same cir- ' cumstances as obtain in other cases.. See Angier v. Coward, 79 Tex. 551, 15 S. W. 698. If so, as before stated, it cannot be here said that the undisputed evidence shows that the withdrawal of the deed from the Hume-ston State Bank was authorized. It cannot be so said merely because the order for the return was some timé after the time limit named in the contract for the deferred payment, for nothing in the record makes it conclusive that the time so named was of the essence of the contract. See Collier v. Robinson, 129 S. W. 389. Nor can it be said to be conclusive that appellant, though present at the time, consented for the bank to return the deed, or that appellant under all the circumstances had deferred the payment beyond a reasonable time for the examination or correction of the title, etc. We conclude that these, as well as others indicated, were all issues that should have been submitted to the jury.

It is accordingly ordered that the motion for rehearing be granted, that the judgment be reversed, and the cause remanded for a trial in accordance with this opinion.  