Statements of the facts of the case appear in the opinions of Ailshie, C.J., and Morgan, J.
I concur with Morgan, J., as to the statute of limitations.
It seems to me the remaining and pivotal point in this case is whether there was an irrevocable delivery of the deed by the grantor during her lifetime either to the grantee or to someone else for his benefit, intending then to pass title, though reserving possession during her lifetime. (16 Am. Jur. 516-521.)
The complaint alleged the delivery of the deed by Mrs. Sandlin to appellant. It is further alleged appellant put and kept the deed in his secret box in the house where both were living and so far as he knew it remained there until surreptitiously removed. The court found: "That said deed was not during the lifetime of Clara S. Sandlin (grantor), delivered to appellant." The court had the right to believe Judge Dunbar and disbelieve appellant, and on such a premise the above finding is correct so far as it went. But if the point be correct that it is not only a question of whether irrevocable delivery had or had not been made to the grantee, but that the second contingency must also be determined, that is, whether there was irrevocable delivery to a third person for the grantee, the above finding is insufficient.
Appellant's cause of action was to quiet his title based on a deed. The testimony of Judge Dunbar was admitted without objection and aside from the testimony of appellant himself, is uncontradicted. If appellant's testimony was true the deed was delivered to him. If Judge Dunbar's testimony was true it was not delivered to appellant but to Judge Dunbar for appellant and there is evidence it was so delivered. If either event transpired and the grantor's intention was irrevocable, title passed to appellant. *Page 302
The proof of delivery as made by the testimony of Judge Dunbar did not conform to the specific allegations of the complaint. Under similar situations this court has held that though there was no motion to amend the pleadings to conform to the proof, if no objection was made to the introduction of the particular evidence (and none was made herein), the complaint will be deemed amended. (Sarvis v. Childs Bond etc. Co.,49 Idaho 79, 87, 286 P. 914, citing and relying on Hayes v.Flesher, 34 Idaho 13, 17, 198 P. 678.)
The cause should be reversed and remanded for the learned trial court to hear further evidence if either party so desires and make a specific finding as to whether or not deed was delivered irrevocably to Judge Dunbar for appellant. (Jensen v. Bumgarner, 25 Idaho 355, 137 P. 529; American Min.Co., Ltd., v. Trask, on rehearing, 28 Idaho 650, 156 P. 1139;Sarret v. Hunter, 32 Idaho 536, 185 P. 1072; Muckle v. Hill,32 Idaho 661, 187 P. 943; Turner Agency v. Pemberton, 38 Idaho 235,221 P. 133.)