James C. Lamar and Joseph Lamar, his brother, lived for many years in Walla Walla county, where they accumulated real and personal property of considerable value, which they held in common. The brothers never married, but lived together in bachelor quarters, at a place called Lamar Station. It appears that James C. Lamar, the elder brother, was strongly opposed to making a testamentary disposition of his property, fearing that his will would be contested and overthrown after his death. To avoid such a contingency, the two brothers had an agreement or understanding between themselves that whichever one should die first would convey his interest in the common property to the survivor before the end came. On the 4th day of October, 1901, James C. Lamar was taken to St. Mary’s hospital at Walla Walla, suffering from some malady the nature of which is not disclosed by the record.
On the 10th day of October, 1901, he executed a deed of the property now in controversy in favor of his brother Joseph Lamar, pursuant to the agreement above referred to, and thereafter died intestate on the 11th day of November following. On the 24th day of October, 1907, the plaintiff was appointed administrator of his estate, and by this action sought to recover the property described in the above deed, from the grantees of Joseph Lamar. From a judgment in favor of the plaintiff, this appeal is prosecuted.
The rights of creditors are not involved, and if the deed of October 10, 1901, was valid as between the parties, the judgment of the court below is erroneous and must be reversed. The validity of that deed is challenged on two grounds: (1) because of mental incapacity of the grantor at the time of its execution, and (2) for want of a valid delivery. At the *385date of the execution of the deed, the grantor was eighty-five years of age, and was suffering from the illness or disease that caused or resulted in his death about a month later. There was considerable testimony tending to show that the grantor was weak, had no expression in his face, did not care to talk, was indifferent and unconcerned, was not competent to attend to ordinary business, and the like, during his stay in the hospital. This testimony all came from nonexpert witnesses, some of whom at least manifested no little bias in favor of the respondent. Their testimony was based on appearances only. They testified to no act or statement of the grantor tending to show that his mind ,was unbalanced, or that he was bereft of reason. The appearances and conditions described by these witnesses were not at all unusual when we consider that the grantor was an eccentric old man, on his deathbed. On the other hand, the testimony of the two witnesses who were present at the execution of the deed shows clearly and convincingly that the grantor was then in full possession of his faculties, and understood the nature and quality of his act and .the business in hand. Their testimony is strongly corroborated by the signature to the deed, and by a witness for the respondent who claims to have appeared on the scene at the moment of the transmission of the deed. The latter witness testified that the grantor gave certain instructions as to the final disposition of the deed, showing clearly that he fully understood the nature of the business under consideration. The respondent relies largely on the testimony of this witness to show a nondelivery of the deed, and if the grantor had sufficient mind and memory to give these instructions, he also had sufficient reason and intelligence to enable him to execute and make an absolute delivery of the deed. On the entire record, we are convinced that the judgment cannot be sustained on the ground of mental incapacity on the part of the grantor at the time of its execution, for there is no substantial testimony in the record tending to establish that fact.
*386The circumstances attending the execution and delivery of the deed are these: The deed was prepared by, or at the instance of, the grantee, who informed one Max Baumeister of the agreement between himself and his brother, and requested him to go to the hospital and procure the deed. Baumeister repaired to the hospital and had a social talk with the grantor for a few moments, after which he informed the grantor of his mission and of the agreement with his brother relating to' the final disposition of their property. The grantor admitted that such was their agreement, and stated that he was ready and willing to execute the deed. The deed was thereupon signed by the grantor before Baumeister and one Blanchard as witnesses, and acknowledged before Baumeister as a notary public. The deed was then handed to Baumeister, who returned to his office and delivered it to the grantee. After the death of the grantor, the deed was returned to Baumeister for the purpose of having it recorded. The mere possession of a deed by the grantee carries with it a strong presumption of delivery which can only be overcome by clear and convincing evidence. Tunison v. Chamblin, 88 Ill. 378; Richmond v. Morford, 4 Wash. 337, 30 Pac. 241, 31 Pac. 513; 1 Devlin, Deeds (2d ed.), § 294.
The evidence relied upon to show a nondelivery is the following: Baumeister testified:
“A. I just went into the room and afterwards I got social with him for perhaps a few minutes, had a social chat with him, and then I questioned him regarding that deed and what Joe had told me, and he admitted that that was the case and that he was ready to sign and willing to sign, and he did sign. Q. And that is all there was to it? A. Yes; of course, he said that Joe and he had had an understanding to that effect, and he wanted Joe to have the interest in it in case he passed on, to keep him from being annoyed by the heirs in the East.”
Mrs. DeGruchy, a witness for the respondent, testified:
“A. I left the room, and after awhile my attention was called that Mr. Baumeister was going, and I went to see if *387their business was concluded, and I heard Mr. Lamar say, as best he could, he spoke up and said, ‘Take care of the deed until I shall ask you for it, which I will as soon as I get well.’ And Mr. Baumeister said: ‘Very well, James, I will take care of it.’ ”
Also:
“Q. I will ask you, Mrs. DeGruchy, speaking of the conversation that you had with James C. Lamar, how soon was that after Mr. Baumeister went out of the room? A. One of the sisters came in and gave him a stimulant, and after the medicine had comforted him, then he told me that he had deeded his land to Joseph after his life, but not until I am dead; and I said, ‘What then, James?’ ‘Then,’ he said, ‘it must go back to Missouri to the poorer portion of my relatives.’ ”
A special interrogatory was submitted to the jury, embodying the substance of the testimony of the last named witness first above mentioned, but the jury were unable to agree upon an answer. There is nothing whatever in the testimony of the witness Baumeister tending to defeat the operation of the deed. The mere statement of the grantor that he wanted his brother to have his interest in the property in case he passed on, to keep him from being annoyed by the heirs in the East, has no tendency, to establish a nondelivery of the deed or to overcome the presumption arising from its possession by the grantee. The conversation referred to the agreement between the brothers and not to the delivery of the deed. If, therefore, the deed was not delivered, the fact of nondelivery must rest on the testimony of Mrs. DeGruchy, and if her testimony is sufficient, if believed, to show a nondelivery, the case must be remanded for a new trial, because the special finding of the jury shows that the general verdict was not based on her testimony or on the statements she attributed to the deceased grantor, and there is no other theory upon which the judgment can be sustained. If, on the other hand, the testimony of this witness was incompetent or is insufficient as a matter of law to show a non*388delivery of the deed, a final judgment should be directed by this court. It may be that the grantor did not intend to divest himself of all his property during his lifetime, or that he expected to recall the deed in the event of his recovery; but are we penhitted to speculate as to his probable intentions? Does not the law, on grounds of public policy, attach certain consequences to his overt acts against which his intentions cannot prevail?
In Gilbert v. North American Fire Ins. Co., 23 Wend. 44, approved by this court in Richmond v. Morford, supra, the court said:
“If the grantor do not intend that his deed shall take effect until some condition is performed, or the happening of some future event, he should either keep it himself, or leave it with some third person as an escrow, to be delivered at the proper time. If he deliver it as his deed to the grantee, it will operate immediately, and without any reference to the performance of the condition, although such a result may be contrary to the express stipulation of the parties at the time of the delivery. This is one of the cases in which the law fails to give effect to the honest intention of the parties, for the reason that they have not adopted the proper legal means of accomplishing their object.”
See, also, Dyer v. Skadan, 128 Mich. 348, 87 N. W. 277, 92 Am. St. 461; Darling v. Butler, 45 Fed. 332, 10 L. R. A. 469; Duncan v. Pope, 47 Ga. 445; Ordinary v. Thatcher, 41 N. J. L. 403, 32 Am. Rep. 225; Hubbard v. Greeley, 84 Me. 340, 24 Atl. 799, 17 L. R. A. 511. And delivery to an agent designated or appointed by the grantee to receive the deed is a delivery to his principal. Ordinary v. Thatcher, and Hubbard v. Greeley, supra.
Under these authorities it is extremely doubtful whether a grantor may make the grantee the depositary of his deed for any purpose or, if he does, whether the law will not give full effect to the deed contrary to his intentions. But, if we concede that the testimony of this witness was sufficient to defeat the deed, if believed, it is not the clear, convincing proof that the law exacts in such cases. The jury was not *389satisfied with the truth of her testimony. The witness was sorely disappointed because she did not receive a portion of the estate herself, and was an extreme, if not a bitter, partisan. She was attempting to give the details of a conversation that occurred more than seven years before, and her testimony was denied by other witnesses. It seems to us that such testimony as this is utterly insufficient to defeat a deed seven years after it has been given over to the grantee, and several years after the death of both parties to the instrument. As said by the court, in Tunison v. Chamblin, supra:
“When a deed, duly executed, is found in the hands of a grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption. Otherwise, titles could be easily defeated, and no one could be regarded as being secure in the ownership of the land. It cannot be that a grantor may assail a conveyance fifteen or twenty years after a deed has been made, and recover the land by merely swearing he never delivered the deed. The unsupported evidence of a grantor surely cannot be permitted to have such effect, especially when the evidence of such a grantor is, in many material matters, contradicted, and he seems to act on a low moral plane. To so hold would render all titles insecure, and would be disastrous in the extreme. Any system of jurisprudence, adopting rules for the attainment of justice, can never sanction a rule fraught with such unjust and iniquitous results.”
Believing, therefore, that the deed under which the appellants claim is valid in all respects, the judgment of the court below must be reversed, with directions to dismiss the action. It may be that the law does violence to the immediate intentions of the grantor in this case, but his ultimate intentions are given sway. Reversed and remanded.
Crow, Dunbar, Chadwick, and Mount, JJ., concur.