The ópipion of the court was delivered by
Collamer, J.It may be proper for a court to instruct a jury to find for a plaintiff if the evidence is believed, when there is no conflict of evidence and it directly proves the fact in issue, or when that fact is a necessary and -invariable inference of law, from what is proved. But, if there be any conflict in the evidence, or if it only shows facts from which the main fact is to be presumed or inferred by the jury, the case should be left to the jury, under proper legal instructions.
The delivery of a deed, either as an escrow or absolutely, is an act including intent. It may be by words, without act, by an unequivocal act only, or by both combined, Hence, it is always a question of fact, resting in pais, and to be found by a jury, under proper instructions of the court. The plaintiff’s evidence of the delivery of his deed was the testimony of two witnesses, who differ in what took place, and neither of them directly proved a delivery, nor even a direction to deliver it to the plaintiff, on the decease of the grantor. The utmost extent of the testimony was to facts, from which the jury might have inferred that the grantor so intended, but there was no ground for inference of law.
The defendant’s testimony, partly derived from the plaintiff’s witnesses, and partly from her own showing, was, that *627the deed was part of a testamentary arrangement, and was, with the deed to the other son, and the will, to make an entire transaction, no part of which was to be operative without the whole.
The case should have been left to the jury, under proper instructions. If it was the intent of the deceased that this deed should hot be delivered to the plaintiff, nor to take effect unless the whole arrangement went into effect, without regard to who prevented it, then the plaintiff should not recover. Whether, if it was his intent'that the deed should be delivered to the plaintiff, and take effect, absolutely, on the grantor’s decease, regardless of the will, the deed was sufficiently delivered, we do not decide, because, we do not perceive, from the case, that such fact is found or must have been found, if the testimony was believed.
Judgment reversed.