Messersmith

[2] In denying the petition for transfer to this court after decision by the district court of appeal we deem it proper to say that escrow instructions giveti by the grantor in a deed are not privileged communications even though such instructions be given to a party who has theretofore, or at the time occupies the position of attorney to the grantor. The assumption that the attorney, while acting as the depository of the deed, is occupying the position of attorney to the grantor, and acting as the agent of the grantor, assumes the very matter in issue where the question of delivery in escrow is involved, because if the attorney is acting solely as the attorney for the grantor then the deed in the possession of the attorney, as such, is, in legal effect, in the possession of the grantor and there has been no delivery whatever. The very act of constituting the attorney depository of the deed in escrow makes him the agent *450 of both the grantor and grantee (McDonald v. Hu,ff, 77 Cal. 279, 282 [19 Pae. 499]; Wellborn v. Weaver, 17 Ga. 267 [ 63 Am. Dec. 235 ]; Davis v. Clark, 58 Kan. 100 [48 Pae. 563]; Gammon v. Bunnell, 22 Utah, 421 [64 Pae. 958]), and renders the instructions…

This is an action to quiet title commenced by the plaintiff as administratrix of the estate of Elizabeth Hans, deceased, against the defendant as executor of the estate of Elizabeth Schwan, deceased. Judgment was rendered in favor of the plaintiff. Defendant appeals under *447 the provisions of section 953a of the Code of Civil Procedure.

For a long time prior to and on November 10, 1911, Elizabeth Schwan was the owner of the tract of land described in the complaint. On that day she made a deed of this property conveying an undivided two-fifths thereof to Elizabeth Hans, an undivided two-fifths to Conrad Scholl, and the remaining one-fifth to Elias Trust. Deceased’s deed was executed under the direction and advice of her attorney, who testified at the trial that the grantor delivered the deed to him in escrow with instructions that he deliver it to the grantees upon her death. Subsequent to its delivery the grantor procured the deed from her attorney on more than one occasion and exhibited it to some of her friends. On one of these occasions she returned to the office of her attorney and told him that the deed had been destroyed. It was never seen thereafter, but, over the…

This is an action to quiet title commenced by the plaintiff as administratrix of the estate of Elizabeth Hans, deceased, against the defendant as executor of the estate of Elizabeth Schwan, deceased. Judgment was rendered in favor of the plaintiff. Defendant appeals under *Page 447 the provisions of section 953a of the Code of Civil Procedure. For a long time prior to and on November 10, 1911, Elizabeth Schwan was the owner of the tract of land described in the complaint. On that day she made a deed of this property conveying an undivided two-fifths thereof to Elizabeth Hans, an undivided two-fifths to Conrad Scholl, and the remaining one-fifth to Elias Trust. Deceased's deed was executed under the direction and advice of her attorney, who testified at the trial that the grantor delivered the deed to him in escrow with instructions that he deliver it to the grantees upon her death. Subsequent to its delivery the grantor procured the deed from her attorney on more than one occasion and exhibited it to some of her friends. On one of these occasions she returned to the office of her attorney and told him that the deed had been destroyed. It was never seen thereafter, but, over the…