# Rayner v. Posey

> Court of Appeals of Texas · December 12, 1914 · 173 S.W. 246

URL: https://www.frixlaw.com/law-library/cases/9828462

## Case

- **Full name:** RAYNER v. POSEY Et Al.
- **Court:** Court of Appeals of Texas
- **Decided:** December 12, 1914
- **Citations:** 173 S.W. 246; 1914 Tex. App. LEXIS 1543
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** I-Iendricks
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9828462

## Opinion text

On Motion for Rehearing.
Tbe appellees, as a part.of their motion for rehearing in tbis cause, submit and file tbe following agreement:
“It is admitted by appellant, Alice Rayner, that tbe deed from F. E. Wheelock to W. E. Rayner, dated March 5, 1891, conveying lot 11 in block 138 to W. E. Rayner, was delivered before tbe deed from W. E. Rayner to P. E. Wheelock, dated March 5, 1891, was delivered, and that the record affirmatively shows that fact; in other words, that the deed from W. E. Rayner to E. E. Wheelock, dated March 5, 1891, was delivered after the delivery of the deed from E. E. Wheelock to W. E. Rayner, dated March 5, 1891, and that both were delivered on the same day.
“This agreement is made for tbe purpose of settling the disputed issue of the time of delivery, and of presenting it to the court in the form of a question of law for its decision.”
We held that upon tbe record tbe question of tbe time of delivery of tbe deed of date the 5th day of March, 1891, executed by Wheelock to Rayner, for tbe property in controversy, was a disputed fact for tbe jury. Appellees are still contending that tbe testimony of Wheelock, to tbe effect that, after tbe deed from Rayner to him was delivered, be never conveyed to Rayner tbe same lot, is undisputed, and upon tbis bearing presents tbe agreement signed by counsel for appellant, to close tbe question.
[1] Referring to our opinion, in wbicb we held, for reasons indicated therein, that tbe question of tbe time of delivery was a disputed question, we make tbe following additional observations: Tbe testimony of Wheelock, in tbe nature of an opinion, delivered over 20 years after tbe transaction, and being a party to tbe suit, the jury would have bad tbe right to have rejected. 1-Ie was a party to tbis suit, having been impleaded as a warrantor. Tbe Supreme Court of the United States said in the case of Sonnentbeil v. Brewing Co., 172 U. S. 408 , 19 Sup. Ct. 236, 43 L. Ed. 495 :
“They were all apparently interested in sustaining the deed., and in denying all knowledge of a fraudulent intent; and while the jury has no right to arbitrarily disregard the positive testimony of unimpeached and uncontradicted witnesses, * * * the very courts that lay down-this rule qualify it by saying the mere fact that the witness is interested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact.”
Tbis rule, following tbe Supreme Court of tbe United States, was adopted in tbe cause of Burleson v. Tinnin, 100 S. W. 351 (writ of error denied), and is announced in numerous cases: Railway Co. v. Johnson, 23 Tex. Civ. App. 192 , 55 S. W. 772 ; Franklin Life Ins. Co. v. Villeneuve, 29 Tex. Civ. App. 128 , 68 S. W. 203 ; Heierman v. Robinson, 26 Tex. Civ. App. 491 , 63 S. W. 657 ; McCormick v. Kampmann, 109 S. W. 493 ; Galveston, H. & S. A. Ry. Co. v. Murray, 99 S. W. 148 ; and by this court in Groves v. Whittenberg, 165 S. W. 891.
[2, 3] Again, just before the conveyance of the particular property in controversy by Wheelock to Merritt, one C. A. Pierce testified that Wheelock made tbe declaration that be did not own lot 11, block 133, tbe same property. Declarations of a grantor in a deed, made before its execution, that be did not claim tbe land, are admissible against bis grantee. Snow v. Starr, 75 Tex. 411 , 12 S. W. 673 . See, also, Wilson v. Simpson, 80 Tex. 279 , 16 S. W. 40 ; City National Bank v. Flippen, 66 Tex. 610 , 1 S. W. 898 . While it is true that declarations or admissions in disparagement of title are admissible against tbe grantee of tbe person making the same, if made prior to tbe grantee’s purchase, they are not admissible as against an innocent purchaser. Ellis v. Stone, 4 Tex. Civ. App. 157 , 23 S. W. 405 .
We held in our former opinion, and repeat here, on account of tbe condition of tbe record, tbe sole question involved is one of delivery, and tbe question of innocent purchaser under Wheelock has no relevancy to tbe controversy. Devlin on Deeds, vol. 1 (3d Ed.) § 266, says:
“Where there is positive evidence that a deed was delivered at its date, and it is shown in addition this deed was ready for delivery at that time, and that its delivery was practicable, the *250 evidence, consisting of verbal admissions, and the testimony of prejudiced parties to establish a delivery at a different time, cannot be regarded as convincing in a proceeding in equity.”
The case of McCullough v. Day, 45 Mich. 554 , 8 N. W. 535 , rather hears out Devlin’s statement, and is cited by us as referable to the issue of time of delivery, as a jury question.
[4] This record does not affirmatively show, as an undisputed fact, that Wheelock, on the 5th day of March, 1S91, delivered his deed to Eayner before Rayner delivered the deed to him (Wheelock) embracing the same .property; and this court, upon full deliberation, refuse to be bound by such an interpretation and such an addition. If this agreement were made in the lower court, it should have been incorporated into the record. As we view the cause, if it is a fact that Wheelock’s delivery was previous to Rayner’s there was nothing to litigate; the title would be necessarily in appellees. We went as far, and probably further, than the rules of law would admit in writing the former opinion on rehearing, upon admission of a fact by appellees against his interest; but we are unwilling to go to the extent of affirming this cause upon an agreement as to what the record shows, as the cause is necessarily tried upon the record as it is made and forwarded to this court upon appeal, and not upon a different record made thereafter. Neither should we permit a record to be agreed away, for the purpose of presénting an issue “to the court in the form of a question of law, for its decision.”
In behalf of the learned trial judge, who peremptorily instructed a verdict in this cause, it may be that such an agreement was made in the lower court, and, if so, neither is appellant’s counsel to be criticized for attempting to stay with his agreement. If made in the lower court, as attempted to be added to the record here, the trial judge-could have done no more nor less than he did. We are convinced, however, as the record speaks here, the evidence is ample as a jury question.
The motion for rehearing is in all things overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9828462. Public record. Not legal advice.