¶1(dissenting.) — I cannot concur in a reversal of this case. The reversal is based solely upon the ground that the deed in question was not delivered, and that the trial court erred in admitting it in evidence.
¶2If the delivery of a deed was purely a question of law, the opinion in this case is almost, if not quite, conclusive, to the effect that it was not delivered. But unfortunately for the decision in this case, delivery is a question of fact and not of law. This court, in this case, decides as a matter of law that there was no delivery of the deed in question, while the facts in the record show that there was a delivery.
¶3The undisputed facts are that the grantor signed, acknowledged, and delivered the deed to a third party: that within a few hours thereafter the grantor committed suicide; that a few hours after the suicide, this third party, to whom the deed was delivered by the grantor, told the grantee that the grantor had left with him a deed or paper for the grantee; and that, a few days thereafter, this same third party brought the deed to the grantee and made a manual delivery thereof. This deed was soon thereafter recorded, and the grantee, or those to whom she conveyed, have been in possession of the deed ever since. No one seems to have doubted the delivery of this deed until this suit was brought — more than 10 years after its delivery, and after the death of the grantor, and after the death of the third party to whom the grantor delivered it, and who delivered it to the grantee.
¶4*481How the mere fact that it is now impossible to prove what was said by the grantor when he delivered this deed to the third party, who thereafter delivered it to the grantee, renders this deed void, and shows that there was no delivery in law, though there was in fact, is more than I can understand. This court bases its decision solely upon the fact that a ivitness ivas found, who was present when the grantor delivered the deed to the third party, who thereafter delivered it to the grantee, and this witness was unable to remember what the grantor or the third party said, one to the other, when the delivery was made. The most and best that can be made of the testimony of this witness is that he does not now remember what was said or done, further than that the delivery was made and that the deed was placed in the safe of the third party, who thereafter delivered it to the grantee. The witness does not remember whether the grantee handed the deed to the witness and the witness handed it to the owner of the safe, or whether the grantor handed it to the owner of the safe, and the latter handed it to the witness, with instructions to place it in the safe. It is certain, however, that the owner of the safe, who ivas the ivitness’ employer, was the custodian of the deed, and that he told the grantee, a few hours after it was left with him by the grantor, that he had it for her, and thereafter delivered it to her, and that she and those who claim under her have had it ever since.
¶5It is true that death has now closed the lips of the grantor and the depositary, but the undisputed facts still live and continue to declare and proclaim the delivery of this deed, in unmistakable language. It is a striking case of res ipsa loquitur.
¶6The grantor had made up his mind to end his own life, but desired to keep it a secret from the one he loved *482best on earth, and whom, he knew, it would grieve most. To this end he makes a deed, conveying to this person, his beloved wife, all his earthly possessions or the chief part thereof, and signs and acknowledges it; and, not wishing to alarm her or put her on notice of his intention, instead of delivering the deed in person to her, he delivers it to a friend (with what instructions we know not, becuase both are now dead). He then ends his own life. Within a few hours thereafter, this friend, to whom he delivered the deed, informs the bereaved wife of the fact of the delivery to him, by her husband, of this deed; and as soon as the funeral is over and the husband is buried, he brings the deed to the house of the grantee and delivers it to her in person; she has it recorded, holds the property under it, sells the same, and delivers the deed to her grantees as a muniment of title, and, years and years thereafter, her grantees are sued for the lands conveyed thereby, the suitors relying solely upon the fact that there was no delivery of this deed by the grantor to the grantee; and this court holds that, because this grantee, or those who claim under her, cannot prove what was said by the grantor to the third party, when the delivery was made, there was no delivery to the grantee.
¶7I do not believe that any one can read this record, and have any doubt as to the fact that the grantor intended that this deed should be delivered by this depositary to his wife, the grantee. No reason or intimation in the world is shown for any other intention on his part. If he had had any other intention, would the depositary have disregarded those instructions and delivered the deed, as he did, to the grantee? No reason on earth is shown or intimated for his disregarding the instructions, desire, or intentions of his dead friend.
¶8*483Tlie effect of the ruling of the court in this case is to wholly destroy a record title to this land in question, for no other reason than that the grantee is not able to prove what the grantor said to the depositary, when he delivered this deed. The majority hold that if the grantee could not prove that the grantor, when he delivered the deed to the depositary, said, “Deliver this to my wife before or after I am dead,” this would establish a good delivery; but that, because this proof cannot be made, the proof of delivery ivholly fails.
¶9I cannot agree to this conclusion. I do not think it is the law, or that it ought to be the law. To so hold tends to destroy all titles after the deaths of the parties to the delivery. After all the parties to a delivery are dead, I doubt that there could be proved, in one case out of ten, all the facts and circumstances, including the conversation, attending the delivery.
¶10The court, by this decision, strikes down a perfect written and recorded title to laird, by resort solely to a legal fiction. Such fictions are the creations of the courts, to promote justice, not to defeat it, as is unquestionably done in this case. To apply this fiction to this case, and thus defeat this grantee’s title, is worse than the result of any tehnicality ever resorted to, in the days of feudalism, to preserve the titles of lands in the families of the lords and nobles. It is worse than livery of seisin, which was abolished long, long, ago, because not founded on reason.
¶11This deed requested that, in consideration of the conveyance, the grantee should pay the debts-of the grantor. These debts may have amounted to more than the value of the land. If this deed is stricken down, the wife not only loses all that she has paid out at the request of her dead husband, but is made liable to her grantees, on her warranty, for the value of the land. She was *484innocent of any wrong and, as she honestly believed, was carrying ont the almost dying request of her husband. She loses her homestead, dower, and quarantine rights in this land, and loses twice its value — all because she cannot prove what her husband said to the depositary when he delivered the deed to him.
¶12If I thought this was the law, I would consent to it, as hard as it is, but, believing, as I do, that it is not the law, I cannot consent to such a conclusion.
¶13I am convinced that the delivery of the deed in question was a question of fact, and not one of law; and that the jury decided it correctly; and that the trial court, or this court, invades the province of the jury in taking the question from them.