¶1Concurring.
¶2The deed purporting to convey land from Houston to John Q. Adams and Obie Adams was placed in escrow and the grantees paid a part only of the purchase price. Placing the deed in escrow was not a delivery of it to the grantees, and as the deed was never actually or constructively delivered by or for the grantor to the grantees, the deed did not oper'ate to divest the grantor of his legal title. The effect of the escrow and the partial payment was to give the grantees an equitable interest in the land to the extent of the partial payment of ‘ the purchase price with a right to complete the purchase as agreed. The grantor’s title remained in him subject to the equitable interest arising from the partial payment and the escrow agreement. Under these circumstances the grantor was not divested of his legal title to the lands and the grantees received no title by the fraudulent procurement of the deed from the escrow holder and the recording of the deed. As the grantees, the Adamses, acquired no title by virtue of the deed fraudulently obtained and recorded, they could convey no title to Richbourg and Barnett to be mortgaged to For-man, therefore the mortgage given to Forman is not upon the' title held by Houston, of the equitable interest of the Adamses in the land passed to Richbourg and Barnett by virtue of the attempted conveyance of the land by the Adamses to Richbourg and Barnett, and the mortgage given by Richbourg and Barnett to Forman, covers such equitable interest, the mortgage of Forman cannot in law or equity affect the title of Houston, and as no act or con*296duct of Houston is shown to estop him from asserting his rights under his title, he has an equity for relief, no other adequate remedy appearing to be available.