delivered the opinion of the Court:
This cáse is before us upon a writ of error, brought by John H. Bruner, George Bruner and Isabelle Bruner, who severally assign various errors, but none as to the granting of the divorce.
There was error in the decree in making the sum which John H. Bruner was ordered to pay for alimony and costs, a lien upon "the lands described in the bill, and in giving the complainant a life estate in a portion thereof, and in decreeing any costs against Isabelle Bruner.
The complainant and John H. Bruner were married on February 27, 1877, and but a short time after, on September 29, 1877, they executed a warranty deed of the lands described in the bill, to Isabelle Bruner, the sole child of said John EL, and being then only about four years old. There is nothing to impeach this deed as vesting the title to the lands in Isabelle Bruner, except the testimony of the complainant that she signed the deed upon condition that it should not be delivered during her lifetime, and the fact that the deed was not filed for record until February 5, 1881,—shortly before John H. Bruner left the State. The deed was signed and duly acknowledged by the complainant. - The justice of the peace who wrote and took the acknowledgment of the deed, testifies that both the complainant and John H. Bruner were present at th.e time, and a conversation was had before him with reference to the object and reason why the deed was made. That* the statement .was made, and he is under the impression that it was made by the complainant herself, that she had some property that came to her from her first husband that she desired to go to her daughter,, and that this land was land that John H. Bruner owned before she married him, and he desired it to go to his daughter, and they thought that would he nothing more than right and proper,—that nothing was said" about the delivery of the deed.
Without adverting to the testimony of John H. Bruner,— further than to say that it contradicts that of complainant and corroborates that of the justice of the peace as to the reason for making the deed,—George F. Bruner and his wife both testify as to different conversations had with complainant, in which she said she did not work for anything in this real property, and she thought, it was right that Isabelle should have it. Mrs. Bruner, the wife of George F. Brqner, testifies that in the fall after the making of the deed, John H. Bruner handed the deed to his mother, who lived with George F. Bruner, saying he wanted his mother to take the deed and take care of it for Isabelle; that his mother put the deed in her bureau drawer; that she frequently afterward saw it lying in the bureau drawer, and that on February 5, 1881, when her husband got the deed to have it recorded, it was in this same drawer. It appears that John H. Bruner had other papers in this drawer, but that this deed was by itself, the other papers being tied up separate. George Bruner, who, at the request of John H., took the deed to the recorder’s office to be recorded, testifies to seeing the deed, in the fall of 1877, in his mother’s bureau drawer at his house, and that he got the deed out of that drawer. The witness Churchill testifies to a conversation with complainant two or three weeks after the making of the deed, in which she said she and her husband had made a deed to his girl to give her his property, and she had given her property to her girl. The whole evidence considered, we regard it as wholly insufficient to affect the validity of the deed as vesting the full and absolute title to the lands in Isabelle Bruner.
As respects George Bruner’s claim of title to the personal property the evidence was conflicting, and not so clearly against the finding of the decree as to call upon us to interfere therewith in that respect; and we may say the same of the decree otherwise than as regards the real estate and costs against Isabelle Bruner. As to such real property the bill should have been dismissed.
As respects the lands described in the bill, and costs against Isabelle Bruner, the decree is reversed. In all other respects it is affirmed, and the cause is remanded for further proceedings in conformity with this opinion.
Decree reversed in part and in part affirmed.