majority"> GRAVES, J.

The petition in this cause is an ordinary petition in ejectment, save that it charges waste, *382 and asks for damages for such, waste, along with damages for the alleged unlawful withholding of the possession, and the monthly rents and profits. The answer is quite long, but when carefully dissected will be found to contain (1) a general denial, (2) plea of estoppel in pais, and (3) a claim of innocent purchaser for value. Reply was a general denial. From an adverse judgment in the lower court the plaintiff has appealed. Errors assigned cover alleged improper admission of evidence, and alleged improper giving and refusing declarations of law. It was tried before a jury, and as a case at law, at the instance of plaintiff and over the objection of defendant. A peremptory instruction,' asked by the plaintiff and refused by the court, creates a situation calling for the facts. These we take in the course of the opinion under the points made.

Facts I. Both plaintiff and defendant are the sons of Sarah F. Peterman, now deceased. Mrs. Peterman was the surviving wife of Allen W. Peterman, and was the owner of the forty acres of land in Clinton County, 110w' dispute. She a-*-so owned 40 acres in Ray County. Mrs. Peterman seems to have taken a child’s part in her husband’s estate. In November, 1906, she was living on the old Peterman homestead with her son, the plaintiff herein, who was then single. On November 26, 1906, she made two deeds to Frank B. Peterman, one covering the land in suit, and the other the forty acres in Ray County. These deeds were drawn by Frank Clark, a notary, and cashier of the Commercial Bank, and were given to Clark to be by him held, and delivered to the grantee upon his mother’s death. These deeds were .warranty in form and had an expressed consideration of five dollars and love and affection, as shown by the notary’s record. Later Clark said that the mother and son came into his office and asked for the deeds and he turned them over to them, and Frank B. put them in his inside overcoat pocket. *383 ITe could not recall the conversation that took place between the mother and son at that time.

In August, 1909, Frank Peterman married and brought his wife and mother-in-law to the old Peterman homestead. For defendant, the evidence tends to show, from statements made by the mother in Frank’s presence, that he was not to receive the deeds unless he remained single and took care of the mother. About December 18, T909, the mother moved to the residence of the defendant in this case, and it is shown that the deeds were found in his mother’s box in the room that she occupied at the old homeplaee. It appears that she could not get along with plaintiff’s wife. Upon the removal to the house of the defendant, the mother burned the deeds, and of this fact plaintiff was informed. Early in 1930 the mother gave the defendant a power of attorney to look after her business, and defendant says that under that power he demanded of the plaintiff the property belonging to the mother, and that plaintiff removed his stock from the land in dispute, and he took possession of it for the mother. Later in May, 1910, he bought it from his mother for $1000, and got her deed therefor. That he paid for the land this sum and some accrued interest is shown beyond dispute. Defendant took possession, made valuable improvements thereon, and his right or title was not questioned until after the mother’s death. Such is a brief outline of the facts.

Equitable Defense: Jury Trial. II. It is a question as to whether or not the trial court should have tried this case' as one in equity. [Schneider v. Schneider, 224 S. W. l. c. 2 et secl-] Appellant is' in no position to question the matter, as he urged a trial by jury as a law case. Defendant objected, but as he won and did not appeal, he is not hurt by the ruling.

Plaintiff asked 16 instructions, and received 7. These covered (1) the alleged delivery of the deeds to the bank, through Clark its cashier, (2) the taking of the deeds from the bank by the mother and son, and the *384 alleged delivery to him, (3) the jury were told that if Mrs. Peterman delivered the deeds to plaintiff in her lifetime, with the intention to pass title, upon an agreement- not to marry and to support her, and that thereafter she entered the premises of plaintiff and took the deeds and burned them, then the deed to defendant conveyed no title, provided defendant knew of the deed prior to his purchase. Instructions 4 and 5 are short and read:

“4. If the jury find from the evidence that the deed in question was delivered to the plaintiff, Frank B. Peterman, by the grantor, Sarah F. Peterman, with the intention of passing to him, the said Frank B. Peter-man, the title to the lands described in said deed, then no statement or act of the saád grantor, made thereafter, would affect the title so conveyed.

“5. If the jury find from the evidence that the deed from Sarah F. Peterman to plaintiff, to the land in controversy was delivered, and further find that the defendant at the time of his alleged purchase had notice of the existence of said prior deed or of plaintiff’s claim to the land, then there is no estoppel in this case and you cannot find for defendant on that ground.”

Instruction 6 was as to measure of damage, and 7 as to form of verdict. For defendant the instructions covered (1) the presumption of title as to one in possession, (2) as to what constitutes a delivery of a deed and the burden of proof of that fact, (3) on the question of estoppel by acts in pais, (4) on the effect of withholding knowledge as to the alleged delivery of deed to plaintiff, and (5) covered the theory that Mrs. Peter-man had made the deed in consideration of plaintiff not marrying and caring for her during life, and the further theory that there had been no delivery thereof. Instructions 6 and 7 for defendant read:

‘ ‘ 6. The court instructs the jury that although they may believe and find from the evidence that Sarah F. Peterman executed a 'deed purporting to convey the *385 land'in question to plaintiff, and left it with. Frank Clark to be delivered to plaintiff on tlie death of said Sarah F. Peterman, and afterwards plaintiff and Sarah F. Peter-man, together appeared at the office of said Frank Clark and called on him for said deed, which he returned to them, and plaintiff picked it up and placed it in his pocket and carried it away with him and afterwards, without being delivered to him as in these instructions, and while in her possession and before delivery to the plaintiff it was destroyed, then the plaintiff cannot recover, and your verdict should be for the defendant.

“7. The court instructs the jury, that although you may believe and find from the evidence that Sarah F. Peterman executed to Frank B. Peterman a deed for the land in question, and that said Sarah F. Peterman gave-said deed to Frank Clark with instructions to deliver the same to Frank B. Peterman after her death, yet if you further believe and find from the evidence that afterwards, Sarah F. Peterman and Frank B. Peterman by mutual acts and conduct took said deed from the possession of Frank Clark and never returned the same to him, then such taking from the possession of said Frank Clark by the mutual act and conduct of said Sarah F. Peterman and Frank Clark, was a revocation of the authority of said Frank Clark to deliver said deed to Frank B. Peterman after the death of said Sarah F. Peterman.”

The verdict was a general one for the defendant. We are not therefore fully advised as to the view of the jury. There is ample evidence in the record upon which the jury could have found that plaintiff was estopped, because defendant, with the knowledge of plaintiff, had paid out over $1000 for the land, and made valuable improvements on the land after the plaintiff had been informed that he had failed to keep his contract, and that his mother had burned the deed. For seven years defendant’s title was not questioned. If this court was hearing this case in equity we would have no hesitancy *386 in decreeing title in defendant on the theory of es-toppel in pais. Nor do we hesitate to say that the jury was so authorized, to find under the evidence. Plaintiff qifit the possession at the close of the year 1909, or early in 1910, and defendant went into possession first for his mother, and in May, 1910, under his recorded deed, for an expressed consideration of $1000, and for seven years improved the land at some considerable outlay. A house was built, a barn moved upon the farm, the fences were renewed, and the land cleared for cultivation and put in grass. All these things the plaintiff knew. In addition it should be added that defendant never heard of the deeds to plaintiff until his mother’s removal from the old homestead, and in fact had no knowledge of the two alleged deliveries. ITe saw them in his mother’s box for the first time, and knew that she burned them. The alleged deliveries were not disclosed to him.

Deed in Escrow: Withdrawal by Parties: No Final Delivery. III. "Whatever may have been the agreement between Frank and his mother, as to her support, and for him to remain single until her death, was not disclosed to Clark, when the deeds were delivered to the bank for further delivery to Frank. Nor was Clark very definite as to the full instructions. A memoranda was made on the envelope but such was not in evidence. The fact that there was to be no final delivery until after death, would indicate that there might have been a contract of some kind. There is evidence of such contract and its violation by plaintiff. But be this as it may, both parties went to Clark and withdrew the deeds and they were never thereafter returned to Clark or the bank. At the death of the mother, neither Clark nor the bank was, and for years had not been, the medium for the final delivery. By consent of both parties this possession of Clark, or his bank, had been terminated.

*387 "Whilst it is true that a deed delivered to a third person, to he by him delivered to the grantee therein at death of grantor, is held to be a good delivery, bnt snch a delivery will not preclude the grantor and grantee from, by common consent, withdrawing the deed, and thereby prevent its final delivery, -through the medium of this third person. Such third party is the common agent of both, and we see no reason why this preliminary delivery may not be withdrawn by the consent of both parties. Our courts hold such to be a delivery in the lifetime of the grantor to obviate holding such deed to be testamentary in character. We find no direct authority in this State, but in Grilley v. Atkins, 78 Conn. l. c. 386, it is said:

“Whether, in a given case, the delivery of a deed to a third party, to be delivered by him to the grantee after the grantor’s death, is to be deemed a delivery in praesenti or not, is generally a question of fact depending upon the conduct and intention of the parties to such a transaction. Two of the essential features of such a delivery are these: (1) the grantor must deliver the deed to a third person for the benefit of the grantee ultimately, and in some way express his intention to that effect; and (2) by the very great weight of authority the grantor must, at the time of such delivery to the third person, part both with the possession of the deed and with all dominion and control over it. See the cases cited to this effect in the note to the case of Munro v. Bowles, 54 L. R. A. 865, 872, 187 Ill. 346; Porter v. Woodhouse, 59 Conn. 568. A delivery so made and accepted by the grantee is irrevocable by the grantor, and cannot by him be recalled, or revoked or modified, without the consent of the grantee.”

In a case of this character there must be a final delivery after the death of the grantor, and this delivery relates back to the delivery to. the third party.But absent the final delivery through the designated medium, without fault on the part of snch medium, *388 there is no deed. In other, words, if the grantee by his own act (as he would by consenting to a withdrawal of the deed) prevented the final delivery, after death, he cannot complain, or claim title under the instrument. Under this view there was no error in defendant’s Instructions 6 and 7 of which complaint is made. Appellant recognized this doctrine in the closing words of his Instruction No. 1, wherein he said:

“Unless said bank was thereafter authorized by the mutual agreement and directions of the grantor and grantee in said deed to make a different disposition of said deed. ’ ’

Deed in Escrow: Intent to Deliver. IV. However, in the instant case the trial court submitted to the jury the question as to whether or not .Mrs. Peterman ever made a delivery to Clark, or his bank, with intent to then part with title to her property to plaintiff, and this question came to Division No. 2 of this court, in Peterman v. Crowley, 226 S. W., 944. In that case, upon facts practically the same as here that court ruled that the trial court was justified in ruling that there was no delivery. The Crowley case involved the 40 acres of land in Ray County, and involved in it was one of the two deeds left with Clark. The facts, as to the leaving of the deeds with Clark, and the instructions given, were practically the same in that case as in this case. This case also rules the contention of errors in admitting evidence against the plaintiff here.

It is urged here that there was an absolute delivery of. these deeds to Clark, and that the title then passed. The same was urged in Crowley’s Case, supra. Delivery of a deed is a matter of intent. Whether or not, in a case like this, it is absolute depends upon the facts. There are pertinent facts in this case which tend to show that Mrs. Peterman did not make an unreserved deposit of those deeds. She was deeding away practically all her property, by warranty deeds, is one fact. Another is the action of the parties themselves. Had there not *389 been some collateral contract or agreement (not divulged to Clark) it is not likely that Frank would have consented to the withdrawal of the deed. At least there was evidence upon which to submit the question to the jury and it was submitted, and found against plaintiff. The same is true as to the alleged delivery of the deeds to the grantee, after withdrawal from the bank. We concede that the grantor and grantee could withdraw the deeds and deliver to the grantee at once. This follows from our views, supra, that the grantor and grantee can consent to the withdrawal of the deeds. But the jury passed upon this alleged second delivery, and there were facts upon which to submit it. First, the conduct of the parties. Frank yielded the possession, and the mother had the deeds, and burned them. The deeds were kept in her room at the old homestead, and removed by her when she left, and just before she burned them.

Instructions: Refusal. V. The plaintiff complains of the court’s refusal of some of his instructions. There are but "few questions in the case, and upon these plaintiff had ample instruction given by the court. His contention that the delivery to Clark was final was presented by instruc-^ion and found against him. However, in this instruction plaintiff recognizes that, by consent, the parties could make a different disposition of the deed. His contention that, upon the withdrawal of the deeds from the bank, there was a delivery to him, was likewise submitted to the jury and found against him. The question as to whether or not the mother took the deeds from his possession, was presented by proper instruction, and found against him, These covered the case save and except the matters of laches and estoppel. For defendant a proper instruction upon estoppel by acts in pais was given, and the one asked by plaintiff was faulty, in that it directed that the jury should find for plaintiff on this question, if they found that defendant knew that a deed had been made before he bought. De *390 fendant had seen the deed, hut saw it in his mother’s possession, and was informed that it had not been delivered. Plaintiff’s instruction omits the matter of knowledge of delivery, and was therefore properly refused. In our judgment the instructions given properly cover all the questions in the case, and even on the theory that this is a law case (which under Schneider v. Schneider, supra, we do not concede) yet it was properly tried, and resulted in a judgment for the right party.

Let the judgment be affirmed.

All concur.

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