
    COX v. PAYNE.
    (No. 2400.)
    (Supreme Court of Texas.
    March 31, 1915.)
    1. Deeds <⅜^59 — Deliveey — What Constitutes.
    Where a grantor made a deed and left it with the notary, and the notary., contrary to instructions, and without authority, recorded it, there was no delivery; for the instrument should not only be placed in the control of the grantee, but it should be'done with the intention that it should become operative as a conveyance.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 136-139; Dec. Dig. <®=>59.]
    2. Public Lands <§=^178 — Entex —Eoebei-tube.
    The rights of an entryman on public land are not forfeited because, before they were perfected by an affidavit 'of settlement required by Acts 29th Leg. c. 103, the notary, with whom was left a conveyance not intended to be delivered until after the filing of such affidavit, without authority, recorded it.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 570-582; Dec. Dig. <g=»178.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Frank Payne against G. C. Cox. A judgment for defendant was reversed by the Court of Civil Appeals (143 S. W. 336), and defendant brings error.
    Affirmed.
    E. R. Pedigo, of Austin, G. B. Fenley, of Uvalde, Claude Lawrence, of Corpus Christi, and W. F. Ramsey, of Austin, for plaintiff in error. Joseph Jones and Geo. M. Thurmond, both of Del Rio, and Charles Rogan, of Austin, for defendant in error.
   BROWN, C. J.

The land in controversy belonged to the public school fund of the state of Texas, and was subject to sale under chapter 103, General Laws of 1905. W. N. Fleming, in compliance with the requirements of said statute, made a purchase of the land, and settled upon the same within the time required by law. However, before he made a return of his affidavit of settlement in compliance with the statute, he contracted to sell his right to Frank Payne, the plaintiff in error, and, in pursuance of that contract, Fleming executed a deed to Payne acknowledging the same before F. W. Church, a notary public, and left the deed in the hands of Church, with instructions not to deliver it until after his' affidavit of settlement should be filed in accordance with the requirements of the statute. Fleming left home — that is, the city of San Antonio, which was also the residence of the notary — and after he had departed the notary, contrary to instructions, and without any authority, sent the deed to the county clerk of the county in which the land was situated, and it was placed upon the records of that county., After this was done the affidavit required by law was forwarded to, and filed in, the general land office, and thereafter the transaction between the parties was completed by the execution of Payne’s note to Fleming and the delivery of possession by Fleming to Payne of the land in suit.

The correctness of the judgment of the Court of Civil Appeals in this case depends upon a proper construction of the facts and circumstances under which Fleming made the deed transferring the land in controversy to the plaintiff in error. It is unnecessary for us- to rehearse the facts other than those that concern the question directly involved. It is sufficient to say that the evidence contained in the agreed statement of facts established the proposition that Fleming had acquired the right to perfect his purchase of the land in controversy, having complied with the law up to the .time of his transfer of the land to Payne. The issue of law is properly presented by the statement of the substance of the evidence. Fleming and Payne had an agreement by which Fleming sold to Payne the right to acquire the land in controversy under his settlement, and there was an agreement as to the sum to be paid and all conditions of the sale. This occurred before Fleming had filed in the general land office the affidavit of settlement in compliance with the requirements of the statute. Fleming executed a deed conveying his right in the land and deposited it with the notary public in escrow; that is, with instructions to hold -it until the transaction was completed. The notary having, contrary to instructions, caused the deed to be recorded before the return of the affidavit of Fleming, presents the question for consideration: Did such act contrary to the instructions of Fleming constitute a delivery to the vendee so as to convey Fleming’s right? In other words, Was this a sale by Fleming to Payne, when, in fact, it was not intended by Fleming that it should be so made? Under the facts of the case, Did the deed transfer the right of Fleming to Payne notwithstanding it was not the intention of Fleming or Payne that it would be so delivered and should operate as a transfer at that time?

There is no question of fact involved in this case, but simply a question as to the legal effect of the action of the notary public in causing the deed to be recorded without the consent of the vendor.

We are of opinion that the question in this case is very clearly and distinctly decided in Steffian v. Bank, 69 Tex. at page 518, 6 S. W. at page 824, in which Justice Gaines defines a sale as follows:

“It is elementary law that the delivery of a deed is requisite to its validity as a conveyance. To take effect, it is quite as necessary that it should be delivered as that it should be signed. To complete a delivery, in its legal sense, two elements are also essential: The instrument must not only be placed within control of the grantee, but this' must be done by the grantor with the intention that it shall become operative as a conveyance.”

The contention of the defendant in error in this case is clearly met and overturned by the following language used by Judge Williams, expressing the law applicable to the facts of this case:

“The fact which operates as a forfeiture is not the filing of a deed bearing a date anterior to -that of filing the affidavit of settlement, but the transfer or attempted transfer of the land in one of the methods mentioned prior to the filing of such affidavit, that act, nothing less, is the cause of forfeiture. The date of a deed is only evidence, and not conclusive evidence, of the date of the transaction.” Patton v. Terrell, 101 Tex. 221, 105 S. W. 1115.

It appears beyond question that it was not the intention of the parties that the deed should be delivered before the completion of the transaction by returning the affidavit of settlement required by the statute, and, as stated by Judge Williams, the date of the deed does not govern, and the unauthorized act of the notary public in having the deed recorded does not constitute a delivery by the vendor. The title did not pass to Payne by the record of the deed in the county in which the land was situated. The affidavit required by law was afterwards filed in the land office, and thereafter the transaction was completed by the parties and possession delivered.

We would violate that fundamental principle of construction of statutes that terms of forfeiture are to be strictly construed if we should hold to the contrary, and construe as a delivery the act which was not intended by either party to have been performed, but was wholly unauthorized by either the purchaser or the vendor.

We therefore are of opinion that the district court erred in rendering judgment against Payne in this action, and that the Court of Civil Appeals correctly reversed and rendered the judgment in the said case.

Therefore it is ordered that the judgment of the Court of Civil Appeals be, and the same is, in all things ailirmed. 
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