Bury

(dissenting). — I dissent. In the first place, I think the evidence fails to show that when Hiukson handed the deed to Hazen he parted with all control over it, etc., and also that the court erred in ruling out certain evidence offered for the purpose of showing what Hinltsoifis intention was. Furthermore, there was no delivery of the deed to the grantees named therein while the grantor was alive; and there could have been none after he was dead. It is contended that giving the deed to Hazen was a present delivery to the grantees; but the express instruction was that he was to keep it until after Hazen’s death, and then to deliver it to the grantees, so that the delivery to the grantees was not to take place during Hinkson’s lifetime. Hazen was not a grantee, and had no interest in the grant. He was a mere agent of Hiukson, and upon the death of the latter the agency ceased. The deed was a mere attempt at testamentary disposition of property, and not being in the form prescribed for the execution of a will, was void. He ordered his agent to return the deed to him, and the agent should have obeyed; for if it was of any value he had as much right to revoke it as he would have had to…

This is an action of partition. Plaintiff and defendant Young are sisters, and also daughters of one M. A. Hinkson For title to support their respective claims Mrs. Bury relies upon a deed from her father, and Mrs. Young claims as a devisee under her father’s will. While suffering from a paralytic stroke, Hinkson called to his bedside for legal advise, as to the disposition of his property, one Hazen, an attorney-at-law, and acting upon his advise he signed and acknowledged a grant deed of his real estate, wherein his aforesaid daughters were named as grantees. This deed he gave to Hazen, with instructions not to record it, but to deliver it to the grantees upon his death. He appears to have recovered from his sickness, and subsequently endeavored to secure possession of the deed from said Hazen, but was unsuccessful in this regard. At a later date he made a will devising all his real estate to appellant Young. Subsequently he died, and Hazen delivered the aforesaid deed to plaintiff Bury.

The sole question in this litigation is, Did the title pass to the grantees under the deed—in other words, was there a delivery of the deed by the grantor? The findings of the court as to the…