Concurring Specially. — I concur in the conclusions reached by Chief Justice Sullivan in the above-entitled cause, but in doing so and to make my position clear desire to set forth the following additional reasons why, in my opinion, this judgment should be reversed and the cause remanded with instructions to enter up judgment in favor of the appellant.
When McPherson entered into the contract referred to in the statement of facts in this case, whereby he sold to Beatty the four lots for the agreed price of $250, to be paid in monthly instalments of $10 each, and placed the deed in escrow in the German State Bank to be delivered to Beatty when the full purchase price was paid, and when, in pursuance of said agreement, Beatty paid $50 on the purchase price and went into possession of said lots, the equitable title to the lots in question vested in Beatty; and when McPherson was paid the balance of the purchase price due upon the lots, the legal title to said lots, by operation of law, immediately vested in Beatty, where, under the facts in this case,' it still rests.
The principle of law adhered to in the case of Cannon v. Handley, 72 Cal. 133, 13 Pac. 315, is applicable to the case at bar, viz., upon performance by grantee of the conditions upon which a deed is delivered in escrow, the depositary becomes the custodian of the grantee and his possession is the possession of the latter. The deed takes effect the moment the conditions are performed without any formal delivery into the hands of the grantee. And in the case of Shirley v. Ayres, 14 Ohio, 307, 45 Am. Dec. 546, the court said: “It is not essential to the validity of a deed that it be actually delivered to, or ever pass into the hands of, the grantee.”
Urich, being a party to this transaction and acting in conjunction with Beatty and McPherson, with full knowledge of the transfer of title to the lots from McPherson to Beatty, and of the attempted transfer of the title to said lots *327from McPherson, to himself by the destruction of the deed from McPherson to Beatty, cannot now be heard to complain of certain liens which attached to these lots by reason of the improvements made upon the same by Beatty subsequent to the execution of the deed from McPherson to Beatty, which liens thereafter ripened into a valid and subsisting claim against the lots, for the satisfaction of which the lots in question ultimately became liable.
1 Devi, on Deeds, sec. 300, contains the following rule:
“When a deed has been properly executed and delivered, it operates as a transfer of title. Its redelivery to the grantor or its cancelation cannot operate as a retransfer of the title so conveyed. Where it has once become effective, it cannot be defeated by any act occurring afterward, unless it be by force of some condition contained in the deed itself..... ‘The decided weight of authority is that the surrender of a deed, though not registered, will not operate to revest the grantor with the title.’ The fact that both grantor and grantee suppose that a deed will not take effect until recorded, and might be revoked at any time before that is accomplished, does not alter its legal character as a conveyance where it has been delivered to the grantee.....The title remains in the grantee when it has once become vested in him, notwithstanding the destruction of the deed or its return to the grantor, and although the latter has, through the direction of the grantee again executed a deed to another.” (Rittenhouse v. Clark, 110 Ky. 147, 61 S. W. 33.)
The preponderance of authority is to the effect that the surrender or destruction of a deed by agreement of the parties will not operate to revest the grantor with the title. Where a grantor has executed a second deed for the same land through a misunderstanding, whereby he has become liable on the covenant of warranty in the second deed to a third party, who had knowledge of the execution and delivery of the first deed, equity will relieve him by canceling the second deed. (Strawn v. Norris, 21 Ark. 80.)
In the case at bar, Urich had full knowledge that a deed had been made for these lots by McPherson to Beatty, and *328he was a party to the destruction of the deed made by McPherson to Beatty. Hence, he dealt with his eyes open as to the real condition of the title to the property and of the existence of the indebtedness incurred by Beatty for improvements placed upon the property during Beatty’s possession. Urich knew that Beatty owed the lienholders at the time the deed was destroyed, and he believed, in common with McPherson and Beatty, that the time for filing the liens had expired and that the lienholders could not satisfy their obligation out of the property, and that unless Beatty could personally respond for the amount of the indebtedness, the lienholders would be defeated. It is clear to my mind that McPherson never undertook to be responsible for the indebtedness incurred, during the possession of Beatty, and that Urich understood, at the time the deed was destroyed and a new deed executed and delivered by McPherson, that McPherson was not to be held for an indebtedness incurred, or encumbrance done, made or suffered, during the possession of Beatty. It was no accommodation to McPherson to have the deed destroyed, but it was an accommodation to Beatty and Urich to avoid the expense of recording the deed from McPherson to Beatty and the making and recording of a deed from Beatty to Urich.
There are some cases which hold that the deed must be surrendered for the very purpose of revesting title, and where it is redelivered for any other purpose, such surrender will neither divest the grantee of the title, nor operate as an estoppel against him. (Bunz v. Cornelius, 19 Neb. 107, 26 N. W. 621; Dycus v. Hart, 2 Tex. Civ. 354, 21 S. W. 299.) In the case at bar, the real purpose for the surrender of the deed from Beatty to McPherson was to save expense.
In cases which are found in the boobs, where the surrender and cancelation of deeds conveying lands have been held, as between the parties, to revest the estate in the grantor, the deeds have not only been unrecorded, but were surrendered soon after their execution and delivery, and the parties were in fact restored to the same identical position, or to what was equivalent, that they stood in before the conveyance was made. *329(Patterson v. Yeaton, 47 Me. 308.) In tbe present case, if this latter rule be adopted, McPherson would not occupy the same position, or what was equivalent, that he stood in before the second conveyance was made. He would be held liable for the indebtedness created by Beatty during his possession,' for which liens attached subsequent to the making of the first deed and prior to the making of the second.
In Weygant v. Bartlett, 102 Cal. 224, 36 Pac. 417, the court said: “Where a purchaser of property has the title made to another as a matter of convenience, — such other conveying it to him on the same day, — such other is not the purchaser’s trustee, as to the land, though the latter conveyance is delivered back to him by the purchaser, and destroyed, with the purchaser’s consent, since, on the delivery of the deed to the purchaser, the legal title passed, and the subsequent destruction thereof could not affect the title.”
The oral agreement entered into between McPherson, Beatty and Urich that, in order to avoid the expense incident to the recording of the deed from McPherson to Beatty and making and recording a deed from Beatty to Urich, the deed already executed and delivered by McPherson to Beatty be destroyed and McPherson make a deed direct to Urich would not, under the facts in this case, divest Beatty of the legal or equitable title to the lots in controversy. McPherson, having conveyed the lots in question by deed to Beatty, could not make a valid conveyance of these lots from himself to Urich. And Urich, who had full knowledge of this fact, accepted the deed from McPherson to himself, fully realizing that McPherson, not being possessed of the fee, did not covenant or warrant against liens created against lots of which he was not the owner. Under the laws of this state, real estate cannot be conveyed by oral agreement. Beatty, having become vested with the title to said lots by a proper deed of conveyance, under the laws of this state, cannot divest himself of such title except by a proper deed of conveyance as prescribed by law. The destruction of the evidence of title does not destroy the actual title. In Regan v. Howe, 121 Mass. 424, the court said: *330“The destruction or detention of the deed by the grantor, after such delivery, cannot divest the grantee’s estate.”
"While, as between Beatty and Urich, the principle of estoppel might apply, as between Beatty’s creditors and heirs, this principle, in my opinion, would not apply under any circumstances. In Botsford v. Morehouse, 4 Conn. 550, the grantee, finding himself unable to pay all the purchase money, returned the deed to the grantor for the purpose of revesting him with title and a creditor of the grantee levied upon the land; and it was held that the levy was effective, for the reason that the title still resided in the grantee. (See, also, Raynor v. Wilson, 6 Hill (N. Y.), 469; Hinchliff v. Hinman, 18 Wis. 130; Cunningham v. Williams, 42 Ark. 170; Warren v. Tobey, 32 Mich. 45.)