On Motion for Behearing.
In their pleadings in the trial court, defendants in error alleged that at the time O. L. Bolls and wife, Nettie Bolls, executed the lease in controversy to the plaintiff in error, H. E. McMahon, one of the defendants in the trial court, it was understood by and between the parties to the instrument that the lease was to be of no force or effect, unless the same was also executed by the plaintiffs Ira Bolls and the three other children of O. L. Bolls. There was testimony introduced upon fehe trial sufficient to sustain that allegation, and the defendants in error insist that the judgment of the trial court should be affirmed under the rule of decision that, in the absence of findings of fact and conclusions of law filed in the trial court by the trial judge trying the case without a jury, every finding will be presumed in favor of the judgment if such finding has support in the evidence. And it is insisted that a finding by the trial court of the facts so alleged would of itself warrant the judgment rendered, independently of all other issues.
While the defendants did not plead ratification and estoppel against the facts so pleaded by plaintiffs, yet the burden was upon plaintiffs and their father, O. L. Bolls, to make a prima facie showing of their right to a cancellation of the lease. It appears both from the pleadings of the plaintiffs and 0. L. Bolls, as well as from the testimony referred to above, -that the lease was executed and delivered by 0. L. Bolls and wife to H. E. McMahon, with the understanding above mentioned. But, notwithstanding such pleading and- proof, the plaintiffs and their father showed no right to the relief prayed for, since there could be no valid escrow delivery to the grantee. Holt v. Gordon, 107 Tex. 137, 174 S. W. 1097.
In the cited case it was held that it may be shown by parol .testimony that an ordinary written instrument was executed undei an agreement that it should not become effective except upon certain conditions to be performed, but that an instrument affecting title to land cannot be delivered in escrow to the grantee, and that, if delivered to the grantee, the grantor cannot thereafter be heard to say that it is not binding upon him because the delivery was upon a condition that the instrument was not to take effect except upon the happening, of a certain contingency, or the performance of some act by the grantee. To the same effect is Springfield Fire & Marine Co. v. Morgan (Tex. Civ. App.) 202 S. W. 784.
Other points stressed in tjie motion for re-' hearing and the arguments based thereon have been duly considered, but we think the same are sufficiently answered in our opinion or original hearing.
Accordingly the motion for rehearing is in all things overruled.