¶1On Petition for a Rehearing.
¶2— A rehearing is asked on the ground that the-court erred in holding that the lower court properly overruled the motion for a new trial. It is claimed that the court, in holding that the finding could not be disturbed, as there was some evidence to support it, based its decision upon a rule of law wholly inapplicable to the case made by the evidence ; that the evidence upon the question whether appellant’s deed was delivered to Smith was documentary, and in such case this court will determine the fact upon the weight of the evidence. We do not controvert the rule, but think the case is not within it. The testimony tending to show that the deed was not delivered was by deposition, but there was some oral testimony upon the same question. Besides,. John Arnold testified by deposition, in 1865, that Smith advised appellant to make a deed to some friend to hold for her benefit, and that she declined to do so; that he then proposed *425that if she would convey the property to him he would convey her the Blinn lots and a half interest in a warehouse; that she was reluctant to do so, and he suggested that the deed need not be recorded, but might be put in safe keeping until an emergency arose'; that in pursuance of this arrangement the appellant made him a deed for the property in question and he conveyed the lots to her, but not the half interest in the warehouse. He further testified that he, as her agent, delivered the deed to Smith. Afterward the appellant surrendered the possession to Smith’s vendee and subsequently conveyed the Blinn lots at the instance of Smith. Appellant’s deed to Smith and Smith’s deed to her were made at the same time, were parts of the same transaction, and her subsequent conveyance of the lots was a recognition of the delivery of the deeds. Surrendering possession also indicated such fact. These facts, aided by the above testimony, tended strongly to show a delivery of the deed, and we can not say that the testimony tending to show that the deed was handed to Smith to be delivered to Taylor as an escrow even furnished a fair preponderance upon this question. Under these circumstances the finding can not be disturbed, and the petition should be overruled.
¶3Per Curiam. — Petition overruled.