Having dissented from the order denying a rehearing of this cause, I desire to state briefly the grounds of my dissent.

The decision of the court is based upon the single proposition that on the facts testified to by the appellant he was not estopped to deny the delivery of his deed as against an innocent purchaser for value from his grantee. There are other questions presented by the record which have been fully argued by counsel; but since they have been left unnoticed by the court, they will not be considered here, it being my intention merely to state my reasons for dissenting from the proposition decided, as to which alone the case becomes a precedent.

If there were no doubt of the soundness of the conclusion that on the facts as stated by the appellant there was no estoppel, it would still, in my opinion, be insufficient to warrant a reversal of the judgment and order of the superior court; for the judge who tried the cause was not bound to accept the appellant’s version of the facts upon his own uncorroborated testimony. The possession, by his grantee, of his deed, fully and formally executed, acknowledged, and certified, and containing a recital that the purchase price had been fully paid, was prima facie proof of a delivery. It created a presumption against appellant which it became necessary for him to rebut, and his testimony that there was no delivery merely produced a conflict of evidence upon which the finding of the judge who tried the cause should be held conclusive. To rebut the presumption of delivery in such a case for the purpose of defeating the title of an innocent purchaser who has paid a valuable consideration on the faith of the grantee’s possession of a deed to which every appearance of validity has been imparted by the voluntary act of the grantor, it is necessary to show not only that there was no delivery as between the parties to the instrument, but that the grantor did not voluntarily intrust it to the custody of the grantee, or allow him to obtain the custody by any culpable negligence; for if the grantor has voluntarily *539 intrusted such evidence of title to one who abuses his confidence, or even if he has neglected reasonable precautions to prevent his perfected deed from being stolen, he is estopped from denying a delivery as against an innocent purchaser for value. All the authorities sustain this proposition, and none more emphatically than those cited in support of the opinion of the court.

This being so, upon what principle can it be held that a trial court must accept the uncorroborated testimony of the grantor that he did not intrust his grantee with the possession of his deed, and that he was not guilty of culpable negligence in allowing him to get possession of it? It seems to me a sufficiently dangerous rule to hold that such testimony may be accepted to defeat the apparent validity of the deed. To hold that, as matter of law, it necessarily defeats its validity— or in other words, that when the trial judge has found in favor of the presumption, and against the testimony of the interested party, his finding of fact must be reversed on the ground that it is contrary to the evidence — is going beyond all reason, and in the face of numerous decisions of this court. It establishes a new rule, which not only puts it in the power of a party to relieve himself of the consequences of his own folly or negligence at the expense of innocent purchasers, but opens a wide door to deliberate fraud; and this in a class of transactions of every-day occurrence, which it should be the policy of the law to guard, against every element of danger or uncertainty.

But aside from this consideration, which is sufficiently serious, I am entirely satisfied that there is no authority for holding that on a fair construction of the appellant’s own statement of the manner in which Adams obtained and kept possession of his deed, he is not estopped to deny a delivery. Two decisions only are cited in the opinion of the court to sustain its conclusion upon this point. In one (Burson v. Huntington, 21 Mich. 416 ; 4 Am. Rep. 497 ), it was held that the maker of a negotiable promissory note was not estopped to deny its delivery as *540 against an innocent holder for value; and in the other (Tisher v. Beckwith, 30 Wis. 55 ; 11 Am. Rep. 546 ), it was held .that a grantor of land was not estopped to deny a delivery of his deed against an innocent purchaser for value. But in each of those cases the instrument in question had been obtained by theft, and without the consent, express or tacit, of the maker. It had not, in other words, been intrusted by the maker or grantor to the custody of the payee or grantee, and the only question was one of culpable negligence. The opinion of the court in each case fully and expressly concedes that if the instrument had been voluntarily intrusted to the party making a fraudulent use of it, the loss must have fallen upon the maker or grantor. It was also conceded that the same result must have ensued if the instrument had come into the hands of the grantee or payee by reason of the culpable negligence of the maker or grantor. But it was held, on the peculiar facts of each case, — proved by the testimony-of disinterested witnesses,—that there was no culpable negligence. In the Michigan case, the maker of the note, after signing it, but before it was stamped, went out of the room to get a surety to sign with him, leaving the note lying on a table, and his sister present, at the same time directing the payee not to touch it while he was gone. Before he returned, the payee took the note, and went away with it, in defiance of the command of the maker and the protest of his sister. It was held not culpable negligence to fail to anticipate this criminal act of the payee.

In .the Wisconsin case, the deed, not fully executed, was placed in a locked trunk, of which the grantor’s wife kept the key. While so kept, it was stolen by the grantee (the grantor’s son), and completed by a forgery. The court in its opinion distinctly says that if the deed had been completely executed by the grantor, the loss must have fallen on him, on account of his negligence in leaving it where the grantee could gain access to it, but holds that he was not bound to anticipate the theft of *541 an instrument to which apparent validity could only be imparted “ by the crime of forgery.”

It seems scarcely necessary to point out the broad distinction between those cases and one in which the grantor shows by his own testimony that his grantee took the deed into his possession and kept it long enough to impose upon an innocent mortgagee by his tacit if not his express consent. All the authorities are clear .to the effect that if Adams had asked and obtained express permission of the appellant to take the deed away, the estoppel would have been complete; and if an express consent will raise the estoppel, I cannot see why a tacit consent does not work the same result. If my deed is lying on a table before me, and my grantee tells me by word and act that he is going to take it away with him if I make no effort to prevent him, if I utter no word of protest, I consent as truly'as if I did so by express words. This is precisely what the appellant did. He knew, apparently, that he was running a risk, — he did not like it, but he permitted it, — and having enabled his grantee to perpetrate a fraud, he is allowed to saddle its consequences upon an innocent party. More than this, he is allowed to subject an innocent party to a serious hardship, in order that he may reap an advantage from his own wrong. The case shows that the same thousand dollars advanced by the respondent on her mortgage was paid over to the appellant as the second installment of the purchase price of the land, and this, by the decree of the court, he is allowed to keep, together with the first payment, and his land. In other words, he comes out of the transaction with the land that he sold, with the five hundred dollars paid at the date of the sale, and with the thousand dollars of which the respondent has been defrauded by his assistance. If Adams had not been enabled to perpetrate this fraud by the opportunity the appellant gave him, it is to be presumed he never would have made a second payment on his purchase, and the most the appellant could have got would have been the first pay *542 ment and the land. By contributing to entrap the respondent he adds to his gains the precise sum and the identical money which the respondent was induced to advance. He is not content to be restored to the position he would have occupied if the fraud had not been committed, but must make all the profit of it.

There is, in my- opinion, no rule of equity or law that lends itself to such a conclusion.