’. il respectfully dissent from, the majority opinion and disposition of this case. It is quite apparent, I think, that the agreement of January 17, 1951, is executory in its nature and does not purport .to convey any present interest in the property described in the royalty deed. It is true that the agreement does provide that if title is good as reflected by the abstracts the buyer shall accept the deed, which shall he delivered to him and the draft shall be delivered to seller, and that such delivery should be made if defects be cured as provided, and that should defects be waived the. deed and draft should- be so delivered. (Emphasis mine.) However, the instrument must be construed as a whole. The clause
“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.”
clearly evidences the intention of the parties that the draft should be collected before the deed should be delivered. Certainly it cannot be contended with any logic or reason that the sellers intended to part with the title to the land without any consideration other than a draft drawn on the buyer which he might or might not become obligated to pay. A different question might be presented had the buyer deposited the $20,000 with the bank at the time the agreement and deed were deposited with it. That question is not before us.
That the executory contract of a married woman to convey her separate estate is unenforceable in this State is well settled. Blakely v. Kanaman, 107 Tex. 206, 175 S.W. 674, 675; Pickens v. Bade, 129 Tex. 610, 104 S.W.2d 482, 483, #(Com. App. opinion adopted); Glover v. Donohoo, Tex.Civ.App., 197 S.W.2d 531, loc. cit. 535 (7).
(A valid contract of sale is necessary to render the deposit of a deed in pursuance of sanie a genuine escrow. Simpson v. Green, Tex.Com.App., 231 S.W. 375, loc. cit. 378(6) and authorities ' there cited. (Com.App. holding approved); Blue v. Conner, Tex.Civ.App., 219 S.W. 533; 30 C.J.S., Escrows, § 2, p. 1192; 21 C.J. p. 866, Sec. 2. As I construe the -agreement of January 17, 1951, the bank was no more than the agent of the Cutbirths to collect the draft and deliver the'deed upon Collection thereof. Even though the agreement be construed as a genuine escrow, yet I think it is insufficient to operate as a present conveyance of title to the property, and is executory in its nature and was not binding on Mrs. Cutbirth until the deed should be delivered in accordance with the terms of the agreement and that prior to such time Mrs. Cutbirth had the right to repudiate toe agreement and repossess the deed. That such is the láw where the escrow involves a deed purporting to convey the homestead of a wife is wel-1 settled in this state. De Bell v. Schuetz, Tex.Civ. App., 65 S.W.2d 413, (wr. ref.) ; King v. Whatley, Tex.Civ.App., 236 S.W.2d 186, loc. cit. 191. wr. ref. n. r. e.; Jackson v. Scoggins, Tex.Civ.App., 220 S.W. 302, cited in Pickens v. Bade, supra. I perceive no valid distinction in this respect between a deed to a homestead and a deed to- the separate property of a married woman. Each requires a completed delivery, or at least the performance of the conditions on which the delivery is authorized before it becomes effective as a conveyance. Prior to such time toe wife has a right to repudiate the escrow and repossess the deed. Mrs. Cutbirth could not bind herself to deliver the deed, upon the contingencies specified in the agreement. At any time before actual delivery, she had the right to repudiate the agreement and repossess the deed from the bank.
The majority opinion lays much stress on the case of Bott v. Wright, 62 Tex.Civ. App. 632, 132 S.W. 961, 962, in fact it hold's that this cáse is determinative of toe *481case at bar. A possible distinction is found in the following language of the opinion in Bott v. Wright:
“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.”
It may be inferred from this language that it was the wife’s intention that the deed be delivered by her husband to the purchaser without any condition, and that the evidence raised a jury question as to whether the husband imposed the condition of the escrow, i. e., that the deed should be delivered to the purchaser only upon his payment of the remaining unpaid part of the purchase money. If this was so the delivery was complete as far as the wife was concerned, when the deed was delivered to the bank and put out of the husband’s control. Whether this is a valid distinction or not, and with all dhe respect to the distinguished jurist who wrote the opinion in Bott v. Wright, I am unable to distinguish the executory nature of an escrow as held in the homestead cases cited insofar as delivery of the deed is essential to bind the wife. I feel that these authorities, especially King v. Whatley, in which the judgment was approved by the Supreme Court by refusal of writ of error, n. r. e., control. In the other authorities cited by the majority, with the exception of Pi'ckens v. Bade and Blakely v. Kanaman, no question of separate property of a married woman was involved. In Blakely v. Kana-man [107 Tex. 206, 175 S.W. 675] Justice Phillips was careful to say that a bond for title 'conveys the superior title to land in equity only “Where the purchase money is paid and possession delivered”. Only in such a case is a bond for title “a species of conveyance” and hence binding on the wife.
It is therefore my view that the judgment should be reversed and judgment here rendered as prayed for by appellants, granting Mrs. Cutbirth the relief prayed for in her petition.