The plaintiff, Ada Hall, commenced this action in the superior court for Spokane county, seeking a decree divorcing her from her husband, the defendant Elmer Hall, and also seeking a decree setting aside a deed to certain real property, described as certain lots in Spokane county, made by him to his brother, the defendant Oliver Hall, to the end that such disposition of the property may be made in the divorce proceeding, under § 989, Rem. Code (P. C. § 7008), as shall appear just and equitable in the protection of her marital rights. A trial upon the merits resulted in a decree awarding to the plaintiff a divorce as prayed for; awarding to the plaintiff the custody of their minor child, reserving to the defendant Elmer Hall the privilege of visiting the child and having the child visit him during school vacations; setting aside the deed in question; awarding to the plaintiff, of the property described in the deed so set aside, one lot and the dwelling thereon, in which she resides with the child; awarding to the plaintiff judgment against the defendant Elmer Hall in the sum of $450, and the further sum of $150 attorney’s fee, which sums are made a lien upon the other lots described in the deed so set aside; and also awarding to the plaintiff the sum of $15 per month to be paid to her by the defendant Elmer Hall for the support and maintenance of their child. Prom this disposition of the cause, the defendants, by the same attorney, have jointly appealed to this court.
It is first contended in appellants’ behalf that the evidence does not warrant the awarding of the divorce and the custody of the child to respondent. This branch of the case does not call for the discussion of any question of law. We deem it sufficient for present purposes to say that the evidence quite convinces us that the trial judge was fully warranted in reaching *617the conclusion he did upon these questions. It would be of no benefit to any one to here review the distressing story disclosed by the evidence.
It is further contended that the trial court erred in setting aside the deed in question, to the end that the lots might be disposed of in the interest of respondent as might seem just and equitable in view of her marital rights. Respondent and Elmer Hall were married in January, 1909. We may concede for present purposes that all of the lots described in the deed in question were and remained the separate property of appellant Elmer Hall since prior to his marriage to respondent. He signed and acknowledged the deed in question, purporting to convey the lots — being all of his real property — to his brother, appellant Oliver Hall, on January 10, 1919. He claims to have made this deed in payment of a debt owing by him to his brother Oliver. It seems plain from the evidence that practically all of the balance which he then may have owed his brother Oliver was so long past due as to be clearly outlawed by the statutes of limitation. We may also observe that the deed seems to have been made at a time when the relations between himself and wife were so strained as to strongly suggest an impending separation. The deed was not delivered, if at all, until some time after its execution. The deed was not recorded until January 20, 1920, a year after its signing and acknowledgment and but one week prior to the commencement of this action. The evidence, we think, warrants the conclusion that the total value of the lots was very much greater than any possible balance owing from him to his brother Oliver. While Elmer testifies that he told his brother Oliver, at Colfax, that he was going to deed the property to him, it does not appear from the- evidence that his brother *618agreed to accept the deed in payment of, or even as security for, any sum owing him, We have no competent evidence of the deed ever actually coming into the possession or control of Oliver, nor as to who caused it to be recorded. Elmer testified in part as follows:
“ ... when I came back (to Spokane) I executed this deed. He was not here at the time and I left it in escrow for him. I gave it to Mr. Shaefer and Peter Mertz. I left it there with them and told them if anything happened that he would be paid off for what I owed him. The deed was to be delivered to Oliver; when he got back it was to be delivered to him. The deed was put in an envelope and sealed and I gave instructions to them as my attorney and I don’t know when it was delivered. I did not deliver it. I directed it to be delivered and he afterwards tried to trade the property off. I was going over to Olympia and if anything happened to me — a railroad wreck or anything — going over there, I left it there for him . . . I told him the deed was there for him and he said: ‘Let it go and we will try to trade the property off.’ ... I don’t know what date the deed was finally delivered. . . I don’t know how long he had it. I don’t think I asked him whether he had the deed or not, because he would never say a word to me or talk with me anything about our troubles.”
While Oliver testified at the trial, his testimony did not in the slightest degree refer to the execution or delivery of the deed, but only was to the effect that he was willing to provide and care for his brother and the child to whatever extent their necessities might require. This testimony seems to have been given for the sole purpose of showing that the child would be provided for if awarded to Elmer, its father. Assuming, for argument’s sake, that the deed was, in a legal sense, delivered to Oliver — which may well be doubted —it seems to us that the trial judge was warranted in *619concluding, as lie did, that Elmer Hall executed the deed with intent to deprive his wife of the opportunity of being awarded any relief as against the property described therein, in the event she should be granted a divorce from him. It also appears to us that there was no consideration for the conveyance; that is, there was no consideration to which Oliver ever assented. Viewing this record as a whole, it seems to us that the question of the setting aside of this deed is in fact much more a controversy between Elmer and his wife than between Oliver and Elmer’s wife. Indeed, it seems to us that, aside from his formal answer in this case prepared by an attorney who was also Elmer’s attorney, Oliver’s attitude has been only passive. We are quite convinced that he has not been guilty of any actual fraud or moral wrong; but that does not argue, under these circumstances, that the deed should remain in force as the conveyance it purports to be.
The decree is affirmed.
Main, Tolman, Mitchell, and Hovey, JJ., concur.