ON PETITION POR A REHEARING.
AILSHIE, J-.— A petition for a rehearing has been filed in this case, and it is contended that there is a conflict in the evidence on the question of delivery of the deed involved, and that in deciding the case the court has disregarded the uniform rule of this jurisdiction to the effect that the appellate court will not disturb the judgment where there is a substantial conflict in the evidence.
Counsel misapprehend the purport and intent of the original opinion. We held therein in substance, and do hold, that there is no substantial conflict in the evidence on the question of delivery of the deed. We also hold that, under the law as applied to the facts disclosed by the record, there was a delivery of the deed. The trial court found that the deed was in fact duly and regularly executed on the 24th day of August, 1901, and that the same “was thereupon left in the custody of Edwin Norris, a notary public before whom said instrument was acknowledged, to be held subject to the further control and direction of the grantor. ’ ’ After a careful examination of all the evidence contained in the record, we are fully convinced that the finding of the court to the effect that the deed was delivered to Norris, to be held by the *163latter subject to tbe direction and control of the grantor, is unsupported by the evidence. It is clear to us that the grantor intended to and did part with the deed and all right of control over the same. The deed was delivered to Norris either by the grantor or grantee. On the latter point there is some uncertainty, but as we view the evidence it makes no difference because the intent of the grantor.should control in that respect. It was unquestionably intended by the grantor to deliver the deed and part with all control over the same. He had conveyed the property, and expressed a desire to part with its title and further ownership, and on that point there is no conflict in the evidence. It is equally clear that the grantee accepted the conveyance of the property, and the title and ownership thereof.
The thing that injects into the case the controversy and doubt that seem to have arisen grows out of the fact that the grantor, Charles Flynn, was in a dying condition at the time he executed this conveyance, and that his brother, Tom Flynn, realized the situation and was endeavoring to keep his brother, the grantor, cheered up and as buoyant and hopeful as possible. He consequently suggested that the deed be left in the hands of the notary and clearly did this for the purpose of dispelling, if possible, from the mind of the grantor the idea that the grantee really thought the grantor was in so serious and critical a condition as subsequent events demonstrated. The suggestion by the grantee that the deed be left in the hands of Norris was not made because of any hesitancy of the grantee in accepting the conveyance or the title to the property. As we view this evidence, the grantee might have received the deed from Norris at any time subsequent to its execution, and we have no doubt but that Norris would have delivered it to the grantee had he called for it at any time subsequent to its execution, and we think he would have been clearly entitled and authorized to do so. The petition is denied.
Sullivan, C. J., and Stewart, J., concur.