#### Mary Foley, *et al.,*Plaintiffs, v. Mary McNamara, *et al.,*Defendants, and Cornelius J. McNamara, Defendant and Appellant.

Delivery: Evidence. On one side, a witness said that decedent, shortly before his death, walked across a room and handed a son an envelope. The son recorded a deed. Decedent at one time intended to convey to the son. On the other, there is a preponderance that the father was too feeble to so act at the time; that the grantee, both before and after the death, acted as though the •decedent’s land was not his; and he witnessed an attempt to ■devise it to others, without asserting title. *Held,*a finding that there was no delivery will stand.

*708*Appeal from Woodbury District Court.*— Hon. A. Van WageNEN, Judge.

Thursday, February 4, 1895.

Action for the partition of certain real estate. Defendant Cornelius J. McNamara *appeals.*

Affirmed.

*Swan, Lawrence & Swan*for appellant.

*Marks & Mould*and *T. P. Murphy*for appellees.

Kinne, J.

I. Plaintiff and defendants are the children and widow of Roger McNamara, deceased. This action was begun, by Mary Foley and her husband against Cornelius J. McNamara, and the widow Mary McNamara, William C. McNamara, and his wife, for the partition of forty acres of land and certain city property of which it is claimed said Roger died seized. Cornelius J. McNamara filed an answer, claiming title to the land. The District Court decreed the widow entitled to hare set apart to- her one-third in value of the property, and that Mary Foley, William C. McNamara, and Cornelius McNamara were each entitled to two-ninths of the property described in the petition. The defendant Cornelius alone appeals.

II. Cornelius McNamara claims that he was the absolute^ owner of the forty acres of land prior to his father’s death, by virtue of a warranty deed executed to him by said Roger McNamara and wife on April 19, 1886. The real controversy between the parties is as to whether this deed under which Cornelius claims title was ever delivered to him. Cornelius claims that the deed was delivered to him first in May, 1886, by his father: that he (Cornelius) then placed the deed in an *709'envelope, indorsed bis name upon it, and banded it to 1 bis father to keep for him. No one else was present at the time of this claimed delivery. He also claims that be arrived in Sioux City two or three days before bis father’s death, which occurred on March 26, 1887; that after his arrival, and while at his father’s house, and in the presence of his uncle, the father arose from his couch, walked across the room to the bureau, and took therefrom this deed, and delivered it to Cornelius. Cornelius’ testimony is corroborated by the uncle to the extent that he saw the deceased get up and go to the bureau, and get an envelope therefrom, and hand it to the son. It may be said that the son was not a competent witness to- testify touching the delivery of this deed from his father to himself, or to the statements of the father which accompanied the delivery. Eliminating this evidence of the interested son, ■and the only evidence tending to show a delivery of the deed is the fact that it was in the possession of Cornelius, and by him placed upon record, and the testimony of the uncle as to- the delivery a couple of days before Roger’s death, and other evidence as to his ability to walk at the time it is claimed he went to' the bureau and got the deed. The presumption is- that the deed, being in the custody of the grantee, was delivered to him by the deceased. *Wolverton v. Collins,*34 Iowa, 238; *Craven v. Winter,*38 Iowa, *471; Blair v. Howell,*68 Iowa, 619, 28 N. W. Rep. 199; *Hutton v. Smith,*88 Iowa, 238, 55 N. W. Rep. 326. But this presumption may be overcome. If the grantee came into possession of the deed without the knowledge or consent of the grantor, then, there was no delivery, and the title did not pass. *Hutton v. Smith,*88 Iowa, 238, 55 N. W. Rep. 326; *Steel v. Miller,*40 Iowa, 406; *Stevens v. Castel,*63 Mich. 111, 29 N. W. Rep. 828; *Golden v. Hardesty,*93 Iowa, 622, 61 N. W. Rep. 913. Was the deed delivered during the last *710visit of the son to his father, twoi or three days prior to the latter’s death? If the testimony of the uncle is to-be believed, an envelope was then given the son by the deceased. But the uncl-e does not know what was in the envelope, if anything. There is a sharp conflict in the evidence as to- the physical condition of the father at the time this last delivery is claimed to have taken place. We think that it is shown by more than a preponderance of the evidence that the father at that time was not able to get up or to walk or to' go from his couch to the bureau, without asistance-, and get the deed, as it is claimed that he did. He was so- enfeebled by old age and so- weak as to- be practically unable to help himself. Our conclusion that this- deed was never delivered is strengthened by other facts, to some of which we may refer. In conversations relating to this land, both before and immediately after his father’s death, Cornelius never alluded to- the fact that he had title to this land. He did refer, after his father’s death, to the fact that his mother could rent the farm to get money for her support, and that after awhil-e, if she wanted, she could sell it. He stood by when his father was making his will, and knew that he was attempting to devise this land as his own, and never intimated that he had title to- it. The father had at one time intended to- deed this land to Cornelius, but the evidence shows that he had changed his mind, and concluded to leave it in equal shares to all of his children. These and many other facts, which we cannot refer to- in detail, satisfy us' that the deceased never delivered this deed. With this disposition of the case we need not pass upon the motion to affirm or dismiss the appeal. The decree below is *affirmed.*