*27Opinion by
Mr. Justice Green:It certainly must be conceded that there was evidence enough in this case to have sustained a verdict either for the plaintiff or the defendant, and that a court trying the cause would scarcely have felt at liberty to set aside the verdict and grant a new trial, on the theory that any verdict the jury might have rendered was against the weight of the evidence. The chief matter in controversy was the delivery of a deed. Essentially the question was one of fact, and its determination was entirely for the jury. The result depended much upon the credibility of witnesses, which is matter exclusively within the province of the jury. The verdict was against the theory of a delivery of the deed. While there are some facts which, if believed, tend strongly to prove a delivery, there are others of a highly persuasive character tending strongly to prove there never was a delivery. In such a condition of the testimony it is not for this court to interfere, unless there was error in the treatment of the case by the court below. After a careful and patient consideration of the charge, the answers and the entire testimony, we are unable to discover any error requiring a reversal of the judgment.
We think the charge was a very fair, impartial, and entirely correct presentment of the testimony in its various aspects. The theories of both sides were stated, and the leading facts claimed by each in support of his theory were fully exhibited, without the slightest expression of opinion by the learned judge on either side.
It is a mistake to say that he told the jury or even intimated to them that the deed must actually have been delivered into the hands of the grantee by the grantor. On the contrary, he expressly said to them that the question for them to consider was, “Was there ever a delivery of it by John Gyger, the grantor, by acts alone, by words alone, or by both together, to her or to anyone for her ?” He had previously defined these methods of delivery and had said: “Where an instrument is formally executed and delivered and there is nothing to qualify the delivery but keeping the deed in the hands of the executing party, or to show that he did not intend it to operate immediately, it is an effectual delivery.” As the defendant admitted that he had re*28ceived the deed from the grantor shortly before his last sickness, AA'hich was several years after the death of the grantee, who was the defendant’s wife, and as the defendant himself contracted with the grantor to buy the property in dispute from him at about the same time, it cannot be questioned that grave doubt arose upon the fact of a previous delivery to Mrs. Miller, upon the undisputed acts and declarations of the defendant himself. But the court gave him the benefit of an instruction to the jury, that they might find a delivery in any of the ways Avhich the law recognizes as sufficient to establish that fact. The learned judge noAvhere said that it was necessary to find that the grantor had actually placed the deed in his daughter’s hands in order to constitute a good delivery.
Recurring to the several assignments of error, we think as to the first that the answer to the plaintiff’s second point Avas entirely correct, since the point assumes that there never was a delivery; and upon that- assumption the conclusion stated Avas sound, notwithstanding the declarations of the grantor stated in the point.
The ansArer to the plaintiff’s fourth point must be taken in connection with AA'hat was said on the subject of delivery in the general charge, and as thus explained an actual delivery was certainly essential to the defendant’s claim of title.
The answer to the defendant’s first point was certainly correct. The attempt of the point Avas to cast the burden of proof of nondelivery of the deed to Mary Gyger, upon the plaintiff, who was claiming by title paramount to that deed, and thus relieving the defendant of the burden of proving a fact material to the validity of the title under which he claimed.
The answer was that the point was true, if the dominion of the deed had passed from the grantor, but not if it remained Avith the grantor. In the latter case the onus rested Avith the party claiming under the deed, and this is undoubtedly so.
The defendant’s second point was affirmed except as to acts and declarations of the defendant, and this exception was properly taken.
The facts set out in the defendant’s third point would be consistent with title in Mary Gyger, and the jury were so instructed *29to consider them, but they would not be conclusive of her title if there never was a delivery; and that was all the court said, and in this there was no error.
The facts stated in the defendant’s fourth point are not all the facts which would be essential to title under the deed in question, and therefore the point could not be affirmed as it stood. They might all exist and yet it might be true that title had not passed and that the grantor’s possession of the deed would not be for the grantee’s use.
This disposes of the first six assignments of error.
The matter covered by the seventh assignment is only a part of a larger offer of testimony, the whole of which, including the part here referred to, was undoubtedly competent.
As to the eighth assignment, it must be observed that Mary Gyger was the person to whom the deed in question was made, and the subject-matter of her declarations was that it was never delivered to her. Other evidence was given of declarations by her that it had been delivered. Moreover, she was dead and hence could not be called as a witness. If the deed was never delivered, she had no title under it at any time, and her declarations inconsistent with her title could never be given in evidence, if their admissibility depended upon their having been made while her interest existed. On the other hand, if title did pass and she was to be considered in possession under it, the declarations were made while her possession continued. Even if her title had been devested by her marriage, she still continued by her possession to assert her title, and her son does not seem to have challenged it. In these circumstances her declarations cannot be regarded, as to their admissibility, simply as declarations against interest made by a person having an interest which no longer existed at the time the declarations were made. She was still living and the period of her interest was the whole period of her life, sixbject to defeasance in favor of her son in the event of her marriage. Her son did not choose to assert his right, if he had any, and until he did her interest-continued. Her declarations, therefore, during her possession, may be considered as declarations against interest while the interest continued, and therefore clearly admissible.
*30The ninth, tenth, eleventh, thirteenth, fourteenth, and fifteenth assignments complain of the admission of proof of the acts and declarations of the defendant himself which, if true, were inconsistent with the good faith of his claim of title under the deed to his wife, and were for that reason incompetent.
We do not see the importance of proving what private estate Mrs. Miller had; but, as it might tend to explain- why her father allowed her to receive rent for a portion of the premises, perhaps it cannot be said to be entirely irrelevant. But in any event the evidence was of too trilling and insignificant a character to justify a reversal, even if it were wrongly received. The twelfth assignment is therefore dismissed.
The sixteenth assignment is not pressed and is without merit.
The evidence in relation to the death of Mary Miller covered by the seventeenth and eighteenth assignments is of no particular importance; but as the contingency of her death unmarried and without issue increased the interest of A. D. Gyger in the purchase money, under the agreement between him and Dr. Miller, by a special provision in that agreement, which was given in evidence, we cannot say that it was entirely irrelevant to show the exact situation of all the parties interested in that agreement.
The nineteenth assignment is not sustained, because the wealth of -John Gyger was not a fact sufficiently relevant to any matter in controversy to require its admission.
The same is true as to the fact of the amount which A. D. Gyger inherited from his father and what he did with it, covered by the twentieth assignment.
The twenty-first assignment is not pressed, nor is the twenty-fifth, and in our judgment neither of them can be sustained.
The offers, the rejection of which is complained of in the twenty-second and twenty-third assignments, were offers to prove by the defendant matters which occurred in the lifetime of John Gyger, and for that purpose the defendant was an incompetent witness.
The twenty-fourth assignment is not pressed and is without merit.
J udgment affirmed.