(dissenting).
“Where money is voluntarily paid, with full knowledge of all the facts, it cannot be recovered, although it may have been paid upon a void demand or upon a claim which had no foundation in fact. Taylor v. Hall, 71 Tex. 216, 9 S.W. 141; Gould v. McFall, 118 Pa. St. 455, 12 Atl. 476, 4 Am.St.Rep. 606. This proposition is too well settled to require further citations of authority. A married women who voluntarily pays her money or other personal property upon a contract made by her, or in any way that would bind a man, cannot recover it back simply upon the ground that she is a married woman. * * * Mrs. Pitts had the right to refuse to receive the property, and could not be compelled to complete the unexecuted part of the contract; but when she elected to abandon the trade she must determine for herself, as if she were a man, whether it was to her advantage to refuse to proceed, and, having so decided, she has only such remedies as a man would have had under the same state of case. It would be a novel case for a plaintiff to allege that the defendant had done no wrong in the transaction, but that, because she was not bound to carry out her agreement, she was entitled to relief against her own deliberate act, which was lawful in itself, or, if unlawful, would not put the defendant in the wrong. If she is *383damaged by the result, she had it in her power to have protected herself by paying the remainder of the price and taking the goods; and if the property purchased was not, in her opinion, of sufficient value to justify this, she has the advantage, over a man, of abandoning the contract and escaping responsibility for other damages than the sum advanced.”
So spoke Associate Justice Brown in Pitts v. Elsler, 1894, 87 Tex. 347, 28 S.W. 518.
Since appellee voluntarily paid appellants $5,000 upon a contract made by her, which contract would have been binding upon her had she been a man, and since I believe the above statement of the law to be current law and to be binding on this Court, I respectfully dissent from the majority opinion.
Besides Taylor v. Hollingsworth, 142 Tex. 158, 176 S.W.2d 733, which is cited for the general rule that a married woman is not bound by a personal executory obligation to pay for property purchased by her, the majority relies upon three cases, Rutherford v. Alamo Abstract & Title Co., Tex.Civ.App., San Antonio, 185 S.W.2d 498, writ dismissed; Guest v. Cox, Tex.Civ.App., El Paso, 34 S.W.2d 301; and Fine v. Lutz, Tex.Civ.App., Fort Worth, 278 S.W.2d 889, writ ref., N.R.E.
In Guest v. Cox, a married woman contracted to buy a house and lot for $500 cash and notes. She agreed to pay $1,000 damages if she refused to close the trade. She refused, and suit was brought for specific performance of the contract or for the $1,000 damages. Clearly this suit was on the executory portion of the contract and not for the $500 which presumably had been paid.
Alamo was based wholly upon the opinion in Guest v. Cox, which the Court considered to be “directly in point.” [185 S.W.2d 499.]
The Court in Alamo distinguished Pitts v. Elsler, supra, saying that “case undoubtedly states the law in this State, but the rule there stated cannot be made to apply to money merely placed with a stakeholder as earnest money.”
If this distinction is sound it is not applicable here for the money here was not paid to a stakeholder.
In Fine v. Lutz, a summary judgment permitting a married woman to disaffirm her contract to purchase realty and recover the “earnest” money paid thereon was reversed, the Court not being satisfied that the earnest money deposited with the agent for the seller had been converted into liquidated damages by the seller as the contract provided it could be in the event purchaser failed to consummate the contract.
Before discussing the nature of “earnest” money, I desire to dispel the statement made by the majority that appellants “held the money in the nature of an escrow to await consummation of the contract.” To constitute an escrow the legal instrument or money must be delivered to a third party. Campbell v. Barber, Tex.Civ.App., Fort Worth, 272 S.W.2d 750, writ ref., N.R.E. Delivery to grantee is not an escrow. See authorities cited under Escrow, Vol. 15 Words and Phrases, p. 234.
Since the money here was deposited with the vendors, there was no deposit in escrow.
In Sousa v. First California Co., District Court of Appeal, First District, Division 2, California, 101 Cal.App.2d 533, 225 P.2d 955, 962, it is stated:
“Nowadays earnest and part payment are regarded as having the same meaning, 37 C.J.S. Frauds, Statute of, § 162, page 643; 49 Am.Jur. 583; 1 Williston on Sales, § 97, Note 19, the former meaning as something given to bind the bargain and not to be applied on the purchase price having become obsolete.”
The contract here provides that the earnest money shall be credited on the total *384consideration upon consummation’ of the contract.
The only reason this contract was not consummated was that appellee defaulted. Upon such default the earnest money, under the contract, became subject to appropriation by appellants as liquidated damages. This case does not involve the reasonableness of such provision.
The only reason the majority gives for not giving effect to this provision is the letter of courtesy and grace written by appellants to Mr. Hamilton warning of the forfeiture of the $5,000 unless the balance of the purchase price was paid within a stated time. It was in no sense a contract or agreement and is wholly without consideration.1 It did not in any manner affect the contractual consequences of default provided for in the contract which became vested in appellants upon default. If the letter had been acted upon by appellee to her prejudice, then an estoppel may have arisen in her favor. Instead of acting on the letter to her prejudice, appellee has acted on it to her asserted advantage. This is a very peculiar turn for the law of es-toppel to take.
Under the present record, I believe appellants’ motion for summary judgment should have been granted.
In any event, I am of the opinion that fact issues are present regarding (1) the nature of the money deposited as being the separate property of appellee or community property (2) estoppel of appellee to contend that the money was her separate estate, and (3) the husband of appellee acting as her agent.
On the Issues of Dissent.
GRAY, Justice.
We think it proper 'to observe that the case of Pitts v. Elsler cited by Justice HUGHES was decided in 1894 and it, like Houston Loan & Investment Co. v. Abernathy, 131 Tex. 601, 117 S.W.2d 1089, was a suit to recover a part of the purchase price paid for personal property — in the Abernathy case for real property. Neither was a suit on an executory contract. Here the most that can be said is that the $5,000 was “deposited” with the sellers “to be applied on the total consideration of this transaction when consummated.” The transaction was never consummated and the $5,000 remained a deposit and regardless of what it may be called its status never changed.
Justice HUGHES concludes his discussion of the letter to M. W. Hamilton by saying “This is a very peculiar turn for the law of estoppel to take.” There can be no question but that the letter, whether it be an extension of the contract, a letter of courtesy and grace or an estoppel, it precluded appellants from taking action on the contract prior to March 4 and until that date the contract remained executory.
We need not cite authorities to support the statement that if land belonging to the separate estate of a married woman is not conveyed in a manner authorized by law then she or her heirs may recover the same. The question of whether she must return what she received need not be here noticed because appellee received only a right to acquire land and she relinquished that right.
The law does not authorize the wife to bind herself by the executory contract be*385fore us and to deny her a recovery of the payment she was not by law authorized to bind herself for would be a strained and unreasonable construction of the law.
The only act of appellee that can work an estoppel against her was her silence. In Johnson v. Bryan, 62 Tex. 623, 626, the court said:
“The facts averred in the answer and found by the court do not constitute an estoppel. Mrs. McDonald was guilty of no positive act of fraud, nor did she conceal or suppress anything when she was called upon to disclose it. As was truly said in U. S. Bank v. Lee, 13 Pet. [107] 118 [10 L.Ed. 81], ‘All we need say is, that a court of chancery cannot hold her responsible because of her silence.”
There is nothing in this record that can constitute M. W. Hamilton the agent of ap-pellee, his wife, in the making of the contract. 23 Tex.Jur., Sec. 118, p. 146.
. The majority says “The extension of the contract evidenced by the letter supra was supported by sufficient consideration.”
Not even appellee makes this contention. She says “That letter did not constitute an extension of time but mere- • ly a declaration of intention to consummate, or declare a default, by March 4th. * * * ” Therefore the claim that there was no consideration for defendant’s letter has no significance.