Long before the fire occurred the deed from the Newtons to defendant in error was actually manually delivered by the former to the latter. If when so delivered the deed became effective as a conveyance, it passed the title in the Newtons to the house to the defendant in error, and so effected "a change in the title of the subject of the insurance" within the meaning of the stipulation in the policy set out in the statement above. If it did that, then the policy ceased, before the fire occurred, to be a binding obligation on the part of plaintiff in error, and the judgment should have been in its favor instead of against it. Careful consideration of the record has convinced us that it conclusively appeared that the deed became effective as a conveyance when it was delivered as stated, and that the trial court therefore erred when he refused the request of plaintiff in error that he peremptorily instruct the jury to find in its favor. The claim made that the delivery of the deed was not to defendant in error as the grantee named therein, but to the bank of which he was president, to hold until he obtained and canceled the notes of Newton held by Harris, is, we think, without support in the evidence. Newton testified he left the deed with defendant in error because he had known him 20 years, had confidence in him, and thought he would carry out his agreement to cancel the notes held by Harris. No inference to the contrary of what Newton's testimony showed could fairly have been drawn from testimony of defendant in error that the deed was left in the vault of the bank of which he was president, in view of his further testimony that Newton left the deed with him on his agreeing not to have it recorded until he had obtained and canceled the notes held by Harris. In fact, the testimony of Newton and defendant in error, respectively, considered as a whole, was that the deed was delivered to the defendant in error as the grantee named therein, and that neither of them at the time understood that the delivery was in escrow to the bank through defendant in error as its president.
Another theory upon which it is claimed the judgment may be supported is that it was understood between Newton and defendant in error at the time the deed was delivered to the latter that it should not be effective as a conveyance until defendant in error had procured and canceled the notes held by Harris. In other words, it is claimed that the deed was delivered to defendant in error as an escrow, and that he held it as such at the time of the fire. But the rule is that the grantee named in a deed cannot hold it as an escrow. Holt v. Gordon, 107 Tex. 137. 174 S.W. 1097.
"The effect," says the writer of the article in "Deeds" in 8 R.C.L. 983, "of a direct delivery to the grantee cannot be obviated by the intention of the parties that it shall operate merely as an escrow to take effect only upon specified contingencies, the intervention of a third person being absolutely essential to the accomplishment of such a purpose. * * * This is one of the instances in which the law fails to give effect to the honest intention of the parties, for the reason that they have not adopted the legal means of accomplishing their object."
The stipulation in the contract was a valid one. Insurance Co. v. Davis, 167 S.W. 176; Fire Association v. Perry, 185 S.W. 374. As it was violated, we see no way of escape from the conclusion that plaintiff in error was not liable to defendant in error.
The judgment will be reversed, and judgment will be here rendered that defendant in error take nothing by his suit.