On Motion for Rehearing. In my opinion the record supports the original opinion previously announced by this court. At the very most, our former disposition of this case may possibly be modified by remanding the same for a new trial in order that the facts may be more fully developed and in order that the parties may present their respective contentions more clerly on appeal. While appellees pleaded 'not guilty' to appellant's trespass to try title cross action, they did nothing further, either by pleadings or proof, to offset the contents and effects of the first deed executed of date October 19, 1949, by grantor to grantee, which deed the trial court expressly found 'would certainly bear very much on the issue in this case' (SF 137) and the contents of which deed the trial court further found to be 'identical' with the terms of the later deed executed of date December 14, 1951, except for immaterial matters (SF 136).
When the execution of the deed of date October 19, 1949, was established by proof *Page 430 and before appellant offered it in evidence, appellees' counsel asserted there would be no objections to its introduction, after which it was offered in evidence by appellant, 'whereupon Defendant's Exhibit Number A (the last deed mentioned) was received into evidence' (SF 130).
In determining the matter of delivery of a deed in such a case, the intention of the grantor is a very material factor. For that reason appellees sought to prove the intention of the grantor in this action by the witness, arthur V. Huntley when grantor came alone and got the deed from him on November 18, 1951. After the said deed was received in evidence, appellees, in the cross examination of the witness, Arthur V. Huntley, who drew and notarized the first deed of date October 19, 1949 for grantor, sought to establish the 'understanding' of the said witness concerning grantor's intentions about the matters in issue here when the said witness answered by stating that 'My understanding is that she (grantor) took the deed (meaning the last one herein mentioned) to give to May (grantee). That is my understanding.' (SF 135-136). Appellees' counsel propounded a further question to the said witness inquiring as follows: 'Your understanding is that she gave this one to May?' (Emphasis added). Answer: 'That's right'. In the last question propounded appellees' counsel did not ask the witness if he understood that grantor got the deed to give to May (grantee) but he asked if the witness understood 'that she (grantor) gave this one (the deed of date October 19, 1949, being the subject matter) to May (grantee),' using the verb 'gave' in the past tense, to which question he got an affirmative answer.
Following this testimony developed by appellees, the witness, Ray Carnohan, testified on direct examination (SF 201-202) that he was present on December 14, 1951, when a young attorney and his secretary came to get grantor to sign a deed executed in favor of May Carnohan (grantee) to the land in question and that he heard Stella Rogers Rutherford (grantor) say to the young attorney that 'since she had signed it to please get it recorded as soon as possible' and that she (grantor) gave him (the young attorney) the deed and he took it away with him (three days before grantor died). The record reveals that the said deed was soon thereafter filed for record on December 19, 1951, (two days after grantor died). There were only two deeds involved in this case and the witness, Carnohan, testified about the delivery of both of them. Carnohan testified that he was present when grantor delivered the last deed executed to her attorney with instructions to have it recorded and he took it away with him (SF 202). The said witness was then asked (SF 202-203) about the other deed executed on October 19, 1949, and among other testimony given he testified that grantor gave the last mentioned deed to his mother (grantee). Appellees seek to confuse this testimony of the witness about which deed he there meant to speak of but this said witness had already given an account of the delivery of the other deed dated December 14, 1951, by saying it had been taken away by an attorney and the witness was thereafter asked about the former deed of date October 19, 1949. In our opinion there is no question but what the witness had reference to the former deed of October 19, 1949, when he testified that grantor gave that deed to his mother (grantee). There was no evidence even tending to controvert the testimony given concerning the delivery of the deed of date October 19, 1949, to grantee by grantor. The witness, Carnohan, was never asked how he knew grantor gave the said deed in question to grantee, and neither was the witness, Huntley, asked why he understood such delivery had been so made. Since appellees established by the witness, Huntley, upon cross examination that he understood (bearing on the question of intent) that grantor took the deed of date October 19, 1949, from him to give it to grantee and since appellees have further established that the said witness also understood that grantor gave the said deed to May (grantee) followed by the direct testimony of the *Page 431 witness, Ray Carnohan, to the effect that grantor gave the said deed to grantee, I must conclude that such undisputed proof constitutes a personal delivery of the said deed to grantee by grantor during her (grantor's) lifetime. The trial court likewise expressly found that there was 'not one bit' of undue influence in the case (SF 213).
Because of the testimony referred to establishing delivery of the first deed executed and as a result of the expressed findings of the trial court found in the record, I heartily agree with the trial court's expressed finding to the effect that the contents of the first deed executed by grantor to grantee and found in the record 'would certainly bear very much on the issue in the case' and would at least prevent the affirmance of a judgment rendered for appellees upon the record before us at any rate. There is nothing in the record to offset the contents and effect of the first deed executed of date October 19, 1949, offered in evidence, and admitted for every purpose, in support of appellant's cross action. No issue by pleadings or otherwise is made of grantor's mental incapacity except for the very day she executed the last deed. Since it has been established that grantor did not have mental capacity to execute the last deed of date December 14, 1951, certainly she did not have mental capacity at such a time any by such an act to merely by implication revoke the terms of the deed she had more than two years previously executed. There was no advantage in having an attorney draw the last deed since he copied the material parts of the first deed and made the same identical with the first deed except for immaterial parts, thus merely reaffirming the terms of the first deed rather than revoking such. The first deed is not invalid because an attorney did not draw it. Neither is it invalid because somebody told grantor she should have an attorney draw her another deed.
The record reveals (SF 131 and 138) that some sort of a notation was typed on the back of the deed of date October 19, 1949, by the witness, Huntley, who drew the deed, and that such notation was placed there under the express instructions of grantor. However, nowhere does the record reveal the contents or purport of such a notation there made if the same was introduced. The deed itself was introduced and is of record (SF 250-252) without revealing the contents of that notation. Such a notation if introduced may have some material bearing on the merits of this case.
In my opinion this case was tried upon the theory that appellant may recover by virtue of the contents of either or both deeds in question, and finally as shown in her motion for judgment upon the contents of the first deed executed. In my opinion also Will Rogers is before us on appeal, brought here by appellant, who seeks relief from him based upon his own testimony. The majority opinion presents some presumptions that in my opinion are not supported by the evidence. Particularly does it presume that the trial court made certain findings in support of its judgment. In my opinion such presumed findings of the trial court must be supported by some evidence, and there is no evidence supporting presumptions that grantor did not deliver the first deed executed to grantee but uncontradicted evidence that she did, and there is no evidence that she did not have mental capacity to make such delivery when she got the said deed from Huntley on November 18, 1951, for the purpose of delivering it to grantee.
In my opinion the record does not support an affirmance of the trial court's judgment. *Page 432