Appellee, Amelie Rutherford Shaw, joined pro forma by her husband, John R. Shaw, filed suit for the cancellation and setting aside of a general warranty deed dated December 14, 1951, with appellant, Maie Rogers Carnohan, named as grantee therein, in which suit appellant denied generally appellees' allegations, filed a crossaction in the nature of trespass to try title, seeking judgment for title and possession of the tract of land described in the said deed, together with the accumulated rents and revenues therefrom, and impleaded Will Rogers as a third party defendant. Although Will Rogers pleaded in bar to appellant's cross-action, he likewise filed a disclaimer of any interest or right of possession in or to the land in question. Appellees pleaded not guilty of the injury complained of by appellant and further pleaded that at no time had they entered upon and dispossessed appellant of the land in question.
The case was tried to a jury upon one special issue submitted to it and as a result of the verdict the trial court rendered judgment setting aside and cancelling the deed in question declaring it null, void and without effect and denied appellant any recovery on her cross-action. Appellant perfected an appeal and presents one point of error charging in effect that the trial court erred in refusing to render judgment for her upon her cross-action.
Appellees attacked the said deed of date December 14, 1951, on the grounds that the *Page 424 grantor therein, Stella Rogers Rutherford, now deceased, did not possess mental capacity to execute the deed on the date thereof and that appellee, Amelie Rutherford Shaw, the granddaughter of grantor, was the sole and only heir-at-law of grantor. The jury found that the grantor did not have sufficient mental capacity to execute the deed of date December 14, 1951, upon which finding the trial court based its judgment. As grounds for title and possession of the land in question appellant relies upon another prior general warranty deed executed by the same grantor, Stella Rogers Rutherford, of date October 19, 1949, conveying the same land described in the later executed deed previously herein mentioned to grantor's sister, appellant herein, Maie Rogers Carnohan. The same grantor executed both deeds conveying the same onequarter section of land to the same grantee with only minor formal variances shown, such as different dates and different notaries used. Both deeds were introduced in evidence without limitation and the contents of both are before this Court. The evidence reveals that the grantor acquired title to the said land as a result of a deed executed by her parents conveying the land to her as grantee to become effective at the death of her parents as grantors, one of whom died thereafter in 1929 and the other in 1933.
The case was tried and a verdict rendered by the jury on September 2, 1954. Before judgment was rendered and on September 17, 1954, appellant filed her motion for judgment upon her cross-action, notwithstanding the jury's adverse answer to an issue concerning a later deed, by reason of the execution and delivery by grantor of the deed dated October 19, 1949, about which there was no controversy concerning its material phases and therefore no controverted issue of fact to be submitted to a jury about its contents, execution or delivery, since such matters were not challenged or denied by appellees either in their pleadings or by their testimony presented. On the same day appellant's said motion was filed it was overruled by the trial court which thereafter rendered and entered its judgment previously referred to on September 30, 1954.
By counter points presented, appellees contend that appellant waived her claims for right of recovery by her failure to request the submission of issues to the jury in support thereof and that in any event appellees objected to the introduction of the deed relied upon by appellant, claiming that such deed was testamentary in character, for which reason it failed to comply with the requirements of the law. Appellees further contend that the evidence does not reveal that the said deed of date October 19, 1949, was delivered to the grantee and that in any event it was revoked by the execution of the latter deed by the grantor.
Considering these matters in the reverse order presented, an examination of the two deeds reveals that they are identical except for the minor formal variances previously herein mentioned. The language of the latter deed makes no reference to the former deed and nowhere therein does it appear that the same was executed in lieu of the former deed or to take the place of the former deed as claimed by the appellees. At any rate, the latter deed has been adjudged null, void, and of no effect, which part of the judgment has not been attacked. It could not therefore serve any purpose for either party. Concerning the delivery of the former deed of date October 19, 1949, relied upon by appellant, the witness, Arthur V. Huntley, testified that he drew the said deed at the request of the grantor and upon information she furnished him; that he notarized it for her on the date therein shown and kept it thereafter for her at her request until November 18, 1951, when she personally came and got it from him; and that it was his understanding that grantor then took the said deed to give it to the grantee, Maie Rogers Carnohan. The witness, Ray Carnohan, testified that the grantor gave the said deed to the grantee. The testimony of these two witnesses concerning the delivery of the said deed is not denied and is therefore uncontroverted. *Page 425
At any rate, appellant (defendant in the trial court) had the said deed in her possession and introduced it in evidence. In the case of Gonzales v. Adoue, 94 Tex. 120, 58 S.W. 951, 953, the court said in part:
"If a deed duly executed be found in the possession of the grantee, the delivery by the grantor and acceptance by the grantee will be presumed, subject however, to be disputed."
That case was cited with approval and the announced rule followed in the recent case of Ransom v. Ransom, Tex.Civ.App.,252 S.W.2d 212 (writ refused). In the case at bar, the execution, delivery and acceptance of the deed of date October 19, 1949, has not been disputed by appellees either by pleadings or proof. Hence the rule as announced would apply to the facts presented here. While the uncontroverted evidence reveals conclusively that the deed relied upon by appellant was delivered by the grantor before her death and accepted by the grantee, the presumption of law under the facts presented supports delivery and acceptance. It is said in 14 Tex.Jur. 818, Section 56, that: 'To operate as an effectual transfer of title it is necessary that a deed be delivered * * * Delivery is the final act without which all other formalities are ineffectual.' In the same text and same volume, page 831, Section 68, it is said:
"When a duly executed deed is found in the possession of the grantee, delivery by the grantor and acceptance by the grantee will be presumed. But this presumption may be disputed as between the parties by showing that there was in reality no delivery. The burden of proof as to this issue, is, of course, on the disputant."
With reference to appellees' contention that the deed of date October 19, 1949, was testamentary in character, appellees further contend that the grantor deposited the deed with Mr. Huntley with the understanding that she still had control of the same and reserved the right to revoke the burden of proof as to this issue is, of support the latter contention of appellees immediately previously herein stated. In an effort to establish their claims here made appellees asked the witness Huntley if relator, at the time she delivered the deed to him, 'reserved the right to recall or revoke this deed and take it back into her possession,' and he replied that he understood that 'if she came to me and gave me a receipt, I would give the deed to her or anyone she said.' In our opinion this does not establish appellees' claims here made. The grantor did get the deed from Huntley for the purpose of delivery and did deliver it. However, each deed is a general warranty deed and each of the deeds was to become effective at the death of the grantor, who reserved a right of possession and the use of the land together with the right of egress and ingress thereto during her lifetime. However, the record reveals that grantor moved to California in July, 1949, lived thereafter with grantee and never personally occupied the land after the first deed was executed. The first deed executed was left with Mr. Huntley until the grantor personally got it and personally delivered it to the grantee, appellant herein, who did not testify in the case because of the prohibitory statute Art. 3716, in such cases and it was agreed by stipulation of the parties that the trial court may so advise the jury. There is no evidence in the record showing or tending to show that the grantor held control of the deed until her death and reserved the right to revoke it. On the contrary, the evidence conclusively reveals that she personally delivered the deed during her lifetime.
In support of their contentions here made, appellees cite and rely upon the case of Eckert v. Stewart, Tex.Civ.App.,207 S.W. 317. In that case, a deed was deposited with a third party subject to the control or recall by the grantor, without which it was to be delivered to the grantee by the third party after the death of the grantor. No such conditions existed in the case at bar. However, the court in that case recognized the well established rules of law applicable to a case in which delivery of the deed had been made during the lifetime of the grantor as was shown to be *Page 426 true in the case at bar. The court there held that in such cases where a delivery of a deed is made directly to the grantee during the life time of the grantor or a delivery of it is made to a third person with directions that it be delivered to the grantee at the death of the grantor, the conveyance takes immediate effect, and vests in the grantee title to commence after the grantor's death. Under the record before us and the law governing such, the deed executed on October 19, 1949, by grantor and delivered by her to grantee was not an instrument only testamentary in character. As previously stated, except for minor formal parts, it was identical with the other deed, which appellees pleaded was a 'general warranty deed.'
Concerning appellees' contention to the effect that the deed relied upon by appellant was introduced over their objections, the record reveals (S.F. 130) that when appellant proved the execution of the said deed in support of her cross-action, appellees' counsel said, 'Your Honor, we have no objections to the introduction of this instrument.' Whereupon appellant then introduced the said deed in support of her cross-action. Thereafter in the absence of the jury appellees made some complaint about the introduction of the said deed and wanted its purpose limited, but it had already been introduced before the jury and no motion was ever made to exclude it. The trial court again announced however that the deed had been admitted in evidence for every purpose and remarked in the absence of the jury at the time that, 'It would certainly bear very much on the issue in this case.'
The evidence conclusively reveals that Stella Rogers Rutherford executed the deed of date October 19, 1949, and personally thereafter delivered it to the grantee, Maie Rogers Carnohan, appellant herein, after which Stella Rogers Rutherford had a sudden attack of some nature on December 16, 1951, and died the following day. According to the record before us appellees have not denied these matters either by pleadings or by proof. No issue was made of the mental capacity or incapacity of Stella Rogers Rutherford to execute the former deed of date October 19, 1949. However, appellant conclusively proved by many witnesses, some of whom were wholly disinterested persons, that Stella Rogers Rutherford was very intelligent and certainly not afflicted with any mental disorders during the year 1949 and some of them testified particularly of her strong mental faculties on or about the date of October 19, 1949, the day she executed the deed relied upon here by appellant. One of appellees' principal witnesses, Mrs. Elizabeth S. Rutherford, the mother of appellee, Amelie Rutherford Shaw, testified that her mother-in-law, Stella Rogers Rutherford, had for a long time been peculiar and odd but she possessed a very strong will power about what she wanted to do until she became affected with senility and became childish in the spring of 1950, but that she was not so affected and was certainly not of unsound mind prior to the spring of 1950; that she died on December 17, 1951, at the age of 73 years. Some of the witnesses further testified that Stella Rogers Rutherford had lived for a long time with her younger sister, Maie Rogers Carnohan, and had on various occasions remarked about how good her said sister had been to her and that she would reciprocate in part by leaving her said property to her said sister.
Under the record presented it is our opinion that appellant did not waive her right of recovery, as charged by appellees, but she insisted upon such recovery as is clearly shown in her motion for judgment. Appellant's grounds for recovery as set forth in her motion for judgment were conclusively established by the evidence heard. Rule 279, Texas Rules of Civil Procedure, states in effect that in a jury case the court must submit to the jury only the controverted controlling issues and that all grounds of recovery not conclusively established by the evidence shall be waived if not submitted. However, grounds for recovery conclusively established need not be submitted to a jury and are not waived when not submitted. National Security *Page 427 Life Casualty Co. v. Benham, Tex.Civ.App., 233 S.W.2d 334; Thomason v. Burch, Tex.Civ.App., 223 S.W.2d 320; Gulf, C. S. F. Ry. Co. v. Jones, Tex.Civ.App., 221 S.W.2d 1010. The rules of law announced by these authorities are recognized with approval by the authorities cited by appellees.
The third party cross defendant, Will Rogers, testified by deposition to the effect that he was a medical doctor of long practice in El Paso, Texas; that he was an older brother of Stella Rogers Rutherford and Maie Rogers Carnohan; that he owned land located in the same section where the land here involved is located; that he had collected the rents from the land here involved since the death of his sister, Stella Rogers Rutherford, and had such accumulative rents deposited in a bank to the account of the estate of his said sister.
For the reasons stated it is our opinion that the trial court erred in its refusal to sustain appellant's motion for judgment and render judgment accordingly. As a result of the uncontroverted evidence in support of appellant's alleged grounds for recovery, that part of the trial court's judgment denying appellant any recovery is reversed and judgment is here rendered sustaining appellant's motion for judgment vesting title and possession of the onequarter section of land described in the deed of date October 19, 1949, in appellant, Maie Rogers Carnohan, and likewise awarding appellant judgment against the third party cross defendant, Will Rogers, for the accumulated rents and revenues from the said land since the death of Stella Rogers Rutherford on December 17, 1951. Reversed and rendered.