for her, but is surreptitiously taken by and is in her possession, and the grantor brings action praying for the removal of the cloud created by such deed upon such property, and for the cancelation of the deed and record thereof, equity will deny such relief for the reason that the grantor does not come into court “with clean hands," and therefore "equity leaves him where it finds him."

[See note on this question beginning on page 44.] Deed — recording as delivery.

the possession of the property contin2. Where a deed is made without uously remained in the grantor, there consideration to an infant of tender was not such a delivery of the deed as years not of kin to the grantor, and necessary to convey title thereby to the placed by the grantor upon record, grantee, and such infant is not enand after the deed is recorded it is titled to recover such property of such returned to the grantor and never de- grantor. livered to the grantee or anyone for [See 8 R. C. L. 1006, 1007.] her, and the intention of the grantor — necessity of delivery. in making the deed was not to pass 3. A deed does not take effect or title to the grantee, but to place the operate to pass title until it is delivproperty where it could not be reached ered, for a legal liability of the grantor, and [See 8 R. C. L. 973, 974.]

ERROR to the District Court for Washita County (Edwards, J.) to review a judgment in favor of interpleader in an action brought to foreclose a mechanic's lien. Reversed.

The facts are stated in the Commissioner's opinion.

Mr. A. M. Beets, for plaintiff in er- Co. v. Crenshaw, 169 Ala. 606, 53 So. ror:

812; Graham v. Suddeth, 97 Ark. 283, No title passed to the interpleader, 133 S. W. 1033; Coulson v. Scott, 167 Minnie Zschornack, as no considera- Ala. 606, 52 So. 436; Bogard v. Bartion passed between the parties. No han, 56 Or. 269, 108 Pac. 214; Kirby possession of the property was deliv- v. Kirby, 236 Ill, 255, 86 N. E. 259. ered, and the deed of conveyance was

The transaction not being one of never actually delivered.

sale or gift, a resulting trust follows, Powers v. Rude, 14 Okla. 381, 79

whereby the interpleader holds the Pac. 89; Couch v. Addy, 35 Okla. 355,

legal title to the property in trust for

the benefit of defendant King. 129 Pac. 709; People v. Watkins, 106 Mich. 437, 64 N. W. 324; Powell v.

Flesner v. Cooper, 39 Okla. 133, 134 Banks, 146 Mo. 620, 48 S. W. 664;

Pac. 379; J. I. Case Threshing Mach. Meigs v. Dexter, 172 Mass. 217, 52 N. Co. v. Walton Trust Co. 39 Okla. 748, E. 75; Johnson v. Craig, 37 Okla. 378,

136 Pac. 769. 130 Pac. 581; Brown v. North, 141 Mr. Richard A. Billups for defendIowa, 215, 119 N. W. 629; Riegel v.

ants in error. Riegel, 243 Ill. 626, 90 N. E. 1108;

Collier, C., filed the following opinGlade Coal Min. Co. v. Harris, 65 W.

ion: Va. 152, 63 S. E. 873; Gaylord v. Gaylord, 150 N. C. 222, 63 S. E. 1028; Ack

This action was brought by the man v. Potter, 239 Ill. 578, 88 N. E. Antrim Lumber Company to fore231; Flynn v. Flynn, 17 Idaho, 147, 104 close a mechanic's lien on lots dePac. 1030; Weber v. Christen, 121 Ill. scribed in the petition, against the 91, 2 Am. St. Rep. 68, 11 N. E. 893; defendant W. B. King and Minnie Union Mut. L. Ins. Co. v. Campbell, 95 Zschornack, alleging that the title to Ill. 267, 35 Am. Rep. 166; Porter v.

said property was in Minnie ZschorWoodhouse, 59 Conn. 568, 13 L.R.A. 64,

nack, but that transfer from the de21 Am. St. Rep. 131, 22 Atl. 299; Chambers v. Chambers, 227 Mo. 262, 137

fendant King to Minnie Zschornack Am. St. Rep. 567, 127 S. W. 86; Akers

was void as being without considerv. Shoemaker, 31 Ky. L. Rep. 482, 102

ation. Thereafter R. Brett, as amiS. W. 842; Sparkman v. Jones, 81 S. cus curiæ, filed motion to make MinC. 453, 62 S. E. 870; Gulf Red Cedar nie Zschornack a party to the cause. (-- Okla. 172 Pac. 958.) Minnie Zschornack was permitted to corded the deed presented for recinterplead and set up her rights in ord, as was his duty to do. said cause; the important part of * (5) Your interpleader specificalsaid interplea being as follows: ly denies that the plaintiff herein

“(3) Your interpleader further has any interest in or lien upon the states to the court: That she is and above-described property of your has been the owner in fee of the real interpleader, by reason of the preproperty set out in plaintiff's peti- tended lien statement filed herein, tion, to wit: Lots twenty-one (21) but states, as aforesaid: That this twenty-two (22), and twenty-three interpleader was at that time, and (23), in block fifty-eight (58), in has been ever since, and is now, a the town of New Cordell, Oklahoma, minor under the age of twenty-one and lots seventeen (17) and eighteen years, and of the age of sixteen (18), in block fifteen (15), East Hill years at this time, and owes the addition to New Cordell, Oklahoma, plaintiff nothing. since the 19th day of April, 1906. “(6) That said pretended lien That on said day and date W. B. statement is a cloud upon the title King, then a single man, conveyed of this interpleader, and said cloud said real property and all of the should be removed. same to this interpleader by good "Wherefore, your interpleader and sufficient warranty deed, which prays that the plaintiff take nothdeed is now held by this interplead- ing of her by reason of said lien; er, and is on record in the office of that said lien statement be declared the register of deeds of Washita void as a lien against the property county, Oklahoma; same having of this interpleader; and that the been filed for record the 19th day of cloud on the title created by reason April, 1906, at 8:10 o'clock A. M. of of said lien statement be removed, said date, and recorded in volume and that the record in the office of 14, page 233, of the records of said the register of deeds be corrected office; a copy of said deed is filed and made to show the real name of herewith, as a part hereof, marked

the grantee in said deed as shown exhibit A. That the said W. B. by the original deed to said properKing has no right, title, or interest ty, and that she go hence with her in said property, nor any part there

costs in this behalf expended, and of. That no other person or per

for other proper relief."

W. B. King filed his answer and sons have any right, title, or interest

cross action to the petition of interin and to said property or any part

vention filed by the interpleader, thereof, except your interpleader Minnie Zschornack; the material herein, who is the legal holder and

averments of said amended answer owner of all of said real property.

and cross action being as follows: “(4) Your interpleader further First. That he denies each and states that the register of deeds, in

every material allegation contained copying and recording said deed to

in said interplea. said property, incorrectly copied the Second. For his second and furname of the grantee in said deed, ther answer to said interplea, the the name of said grantee appearing said defendant alleges and states of record as Minnie S. Schormack, that he is the owner in fee simple of instead of Minnie Zschornack, which lots 21, 22, and 23, in block 58, in is the real and true name which ap- the city of New Cordell, Oklalioma, pears in the original deed presented and lots 17 and 18, in block 15, East for record; that your interpleader Hill addition to the city of New Cordid not know of said mistake in the dell, Oklahoma, all in Washita counrecorder's office until her attention ty, as described in said plea of interwas called to same upon the filing of vention. That said intervener has this suit, but presumed that said no right, title, or interest in said register of deeds had correctly re- premises, but alleges the fact to be that on the 19th day of April, 1906, action the interpleader, Minnie the said defendant, W. B. King, exe- Zschornack, filed a general denial. cuted a deed to said property to The Antrim Lumber Company, by Minnie Zschornack, but that said demurrer to its evidence, was elimideed was executed without consider- nated from the case, and the trial of ation, and was not delivered to the the case proceeded upon the issue said Minnie Zschornack or said in- joined between the interpleader, terpleader or any other person for Minnie Zschornack, and W. B. King. her benefit, and that the title to said The material evidence is that W. premises was not intended to pass B. King was a single man and owned and did not pass from said defend

the property in litigation; that the ant. That said defendant was at mother of Minnie Zschornack was said time, and has been at all times keeping house for him; that Minnie since, in possession of said premises, was then a little girl about six years and has paid the taxes and made old; and that King got into some valuable improvements thereon. De- difficulty regarding a suit which he fendant further states that the deed

had against some parties, and, fearso made at said time and placed on

ing the result of the litigation, exerecord is a cloud upon defendant's

cuted a deed to the little girl, and title, and that unless the same is placed the deed on record ; that after canceled, set aside, and held for

the deed was recorded it was renaught said defendant will be un

turned to King and remained in his able to dispose of said property. De

possession for several years, and fendant further says that, if the in

never was delivered to the intertervener herein has possession of said deed as alleged in said petition pleader; that King married the inof intervention, the same was sur

terpleader's mother, and the interreptitiously and fraudulenty ob- pleader lived with King and his tained without the consent of the wife; that thereafter trouble arose said defendant.

between the parties, and the interThird. Defendant further states pleader took the deed from King's that, in the event that the court possession without his knowledge, should hold that the deed herein in

and left home; that King continued

to remain in possession of the propvolved was delivered to the interpleader as a matter of law, then said erty, paid the taxes thereon, and defendant alleges the facts to be that

received the rents; that he made imsaid interpleader holds the legal title

provements from time to time, to said described property in trust

which he paid for; that said King, for the use and benefit of this de

about the time of the execution of fendant, W. B. King. That the said

the deed, informed the interpleader W. B. King is the owner of the equit that he was deeding the property in able title thereto, and that said in- controversy to her; that subsequentterpleader has no right whatever in ly when the interpleader, in the inthe equitable title to said property.

terest of said King, was summoned Wherefore said defendant prays

to court she was instructed by King that the deed heretofore executed by

to swear that she came by the propthe said W. B. King to the said Min- erty in controversy from money she nie Zschornack be set aside, can

had inherited from her father, and celed, and held for naught, and his that King had borrowed from the title quieted against the said Minnie interpleader's mother, and that her Zschornack; or that the court de- mother told King just to deed the clare the said Minnie Zschornack property to interpleader instead of to hold the title in trust for the said replacing the money. defendant, W. B. King, and for such King testified that he met J. K. other and further relief as the court Little, the attorney on the other nay deem the defendant entitled to side of the case, down at the Finerty in law and equity.

Bank, who said, “I think we can get To said amended answer and cross the costs onto you;” that caused V. ANTRIM LUMBER

(- Okla. — 172 Pac. 958.) him to put this property into some- ed by the plaintiff in error, and to body's name for safe-keeping; that which question the discussion of he went to Mr. Coker and had this both briefs is principally directed, deed written up and had it recorded; the transaction under consideration that after its record the recorder de- created a trust in favor of W. B. livered the deed to him; that when King, or that a question of trust is the intervener left home he missed at all involved therein. We are of the deed; that he positively never the opinion that there are but two intended to deliver the deed to Min- questions for proper determination nie Zschornack or convey the prop

of this cause: (1) Was there such a erty to the intervener; that he had

delivery of the deed executed by the been constantly in possession of the

grantor to the intervener as to pass property in controversy, and also of

title to the intervener? (2) Does the deed until the intervener took

the evidence show that said King the deed. The intervener testified

was entitled to the relief prayed for that she had never paid any consid

in his cross action? We are of the eration for the property involved; opinion, and so hold, that both of that she had never been in possession of or paid taxes on said proper

said questions must be answered in

the negative. ty; and that she had never been in

In Powers v. Rude, 14 Okla. 381, possession of the deed until she took

79 Pac. 89, it is it from the papers at home, and that

held: “A deed does Deed-necessity

of delivery. no one was present when she took it.

not take effect or Judgment was rendered for the intervener “that the title to the real operate to pass title until it is de

livered." estate involved in this action both

In Hunter Realty Co. v. Spencer legal and equitable be, and the same is, vested in said Minnie Duncan,

(Horner v. Spencer) 21 Okla. 155,

17 L.R.A.(N.S.) 622, 95 Pac. 757: formerly Minnie Zschornack, and that the defendant W. B. King be

"No title will pass by a deed which

is not delivered by the grantor or and is forever denied any right, title, or interest in and to said lots

someone duly authorized by him.”

In Daniel v. John P. London Co. or either of them, and the title of the

44 Okla. 297, 144 Pac. 596, it is held: said Minnie Zschornack Duncan to said lots is forever quieted as

"A deed signed and acknowledged,

• but not delivered, is not effective as against the said W. B. King, or any person or persons claiming or to

a conveyance, and does not transfer claim under him.” To the rendition

or pass title.' of said decree the said W. B. King

It is not even contended by the in

tervener that there was a manual duly excepted. The Antrim Lumber Company was adjudged to pay costs, delivery of the deed from W. B. but did not except thereto. W. B. King to her, or to anyone for her,

and thus the deed did not convey King made timely motion for a new trial, which was overruled and ex

title to her, unless under the evi

dence herein the record thereof was cepted to, and error brought to this court. The Antrim Lumber Com

a delivery to her. We are not cited

in either brief to, and have not pany not having excepted to or ap

been able to find, any opinion by pealed from the judgment rendered against it, no question is presented

this court in which the question of

the effect of recording a deed by as to the action of the court in ren

the grantor and the retention of the dering judgment against said com

deed by him as to delivery to the pany on the demurrer interposed to

grantee has been determined, but its evidence or in taxing it with

we are of the opinion, and so hold, costs; the appeal being taken by W. that, while the authorities are not B. King alone.

entirely harmonious, the great We do not think that, as contend- weight of authority is that the re

cording of a deed to a minor is not deed was held not to be shown, in

such delivery as a controversy between the grantor -recording as delivery.

would pass title to and the grantee, under the following

such minor, unless circumstances: The plaintiff signed it was the intention of the grantor and sealed a deed to the defendant, that such recording was to operate and caused it to be recorded, intendas a delivery, so shown by evidence. ing at the time to pass the title to

The registry of a deed by the the defendant, but without doing or grantor might, perhaps, in the ab- saying anything else to manifest sence of opposing evidence, justify that intention. He afterwards rea presumption of delivery, but such ceived the deed back from the presumption is repelled where the recorder, and it was never in the registry was made without the possession of the defendant, or of knowledge or assent of the grantee, anyone representing her, and, when and the property it purported to requested by her counsel to surrenconvey always remained in the pos- der the deed, he refused to do so. session and under the control of the Before such request, but after he grantor. Younge V. Guilbeau, 3

had received the deed back from the Wall. 636, 18 L. ed. 262.

registry, he communicated its existRecording of a deed by a grantor ence to the defendant, and spoke to does not of itself constitute a de- her of the land described in it as livery. It depends upon the grant- hers, as he then supposed it was. or's intention. Humiston v. Pres

The defendant assented, so far as ton, 66 Conn. 579, 34 Atl. 544; she could, to the transaction. The Moore v. Giles, 49 Conn. 570; Jami. ground of the decision is that there son v. Craven, 4 Del. Ch. 311; Mas- was no act or declaration on the part terson v. Cheek, 23 Ill. 72; Weber v. of the grantor manifesting his inChristen, 121 Ill. 98, 2 Am. St. Rep. tention that the recording of the 68, 11 N. E. 893; Hutton v. Smith, deed should be regarded as a deliv88 Iowa, 238, 55 N. W. 326; Berk- ery; the court holding that it was shire Mut. F. Ins. Co. v. Sturgis, 13 necessary that such intention be Gray, 177; Glaze v. Three Rivers manifested by some act or declaraFarmers' Mut. F. Ins. Co. 87 Mich. tion, other than the mere recording 349, 49 N. W. 595; Babbitt v. Ben- of the deed itself. nett, 68 Minn. 260, 71 N. W. 22; In Beckett v. Heston, 49 N. J. Eq. Doorley v. O'Gorman, 6 App. Div. 510, 23 Atl. 1014, where the grantor 591, 39 N. Y. Supp. 768; Hayes v. herself sought to set aside a deed to Davis, 18 N. H. 600; Thompson v. her son, the court held that there Jones, 1 Head, 576; Chess v. Chess, was no delivery, and that she was 1 Penr. & W. 32, 21 Am. Dec. 350. entitled to the relief sought, notwith

The fact that the grantor execut- standing that after having executed ed the deed and had it recorded does the deed in question she left it with not amount to a delivery, where it the conveyancer to have it recorded, is proved as a fact that he never in

and that it was recorded accordingtended to make it his deed except ly. It appeared in this case that aftunder a contingency which never

er the deed was recorded it was happened. Jones v. Bush, 4 Harr.

sent to the grantor, and that, upon (Del.) 1.

receiving it, she informed her son

of its execution, but did not part The registration of a deed by the

with its possession or control at any grantor does not of itself operate as

time. The court said that when she a delivery, nor does it supersede the sent the deed to be recorded it was necessity of proof of a delivery. not with the intention to have the Hawkes v. Pike, 105 Mass. 560, 7 registration operate as a delivery. Am. Rep. 554.

In Moore v. Giles, 49 Conn. 570, In Barnes v. Barnes, 161 Mass. an action by a father to remove as a 381, 37 N. E. 379, the delivery of a cloud upon his title a deed executed