This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, §1, p. 800, being §4-215, Burns’ 1946 Replacement. See: Pringle v. Broadstreet (1958), 154 N. E. 2d 413, for opinion of the Appellate Court.
The issues involved in this case hinge on the delivery *440or nondelivery of a deed from the appellants to the appellees.
It appears from the facts in this case that the parties agreed, orally, to an exchange of certain real estate owned by the parties on December 4, 1954. Appellant, Thomas Lyle Pringle, and Appellees, Wiley Broadstreet and Mary Elizabeth Broadstreet, on said date went to the offices of the Plainfield Building and Loan Association for the purpose of executing their respective deeds to the two properties proposed to be exchanged, Thomas Lyle Pringle executing his deed to the property owned by him and Beatrice C. Pringle as tenants by the entireties, and Wiley Broadstreet and Mary Elizabeth Broadstreet executing a deed to their property. On the following Monday, December 6, 1954, Beatrice C. Pringle in company with Mr. Broadstreet went to the office of said Building and Loan Association and there executed the deed previously signed by her husband. Thereafter appellants brought suit to cancel and set aside the deed they had executed on December 4th and December 6th, 1954, alleging no delivery of their deed; to this complaint appellees filed a pleading denominated a “cross-complaint,” in two paragraphs, and their answer in denial to the complaint. Paragraph one of their cross-complaint prays judgment against the plaintiffs for possession of the real estate described in the complaint, for $2,500 damages for unlawful detention thereof, costs of the action and all other just and proper relief; paragraph two of the cross-complaint demands judgment for $3,500 damages, the costs of the action and all other proper relief.
The appellants filed separate and several demurrers to both paragraphs of appellees’ cross-complaint. The trial court overruled the appellants’ demurrer to the *441first paragraph of cross-complaint and sustained the demurrer to the second paragraph of the cross-complaint. Appellants then filed answer in denial to the first paragraph of cross-complaint. On the issues formed, trial was had, without the intervention of a jury, resulting in a judgment for the appellees on said paragraph of cross-complaint, from which judgment this appeal is taken.
A careful examination of the record in this case discloses the appellants’ contention, that there was no delivery of the deed to the property owned by them, was well taken. The record shows that on December 4, 1954, Thomas Lyle Pringle had a deed to certain property, then owned by him and Mrs. Pringle, as tenants by the entireties, prepared by Mrs. Mary Fletcher, who was then secretary-treasurer of the Plainfield Building and Loan Association. Mrs. Fletcher was to hold the deed until certain conditions were met before delivering the same to the Broadstreets, that Mrs. Fletcher pinned a note to said deed containing said instructions. That thereafter, by inadvertence, error, and mistake, said deed was placed with other deeds which were to be sent to the county recorder’s office for recording, and was there recorded and afterwards returned to the office of the Plainfield Building and Loan Association where it still remains. At no time did it appear that the conditions under which the delivery of the deed to the Broadstreets was being held up, had been performed.
The appellees predicate their theory as to the delivery of the deed on the premise that Mrs. Fletcher was acting as the agent for both parties, that the appellants authorized her to record the deed and therefore, that a recording of the Pringle deed constituted a delivery thereof to the appellees. The theory *442of the appellees herein is not substantiated by the record; consequently the decision of the trial court must be reversed.1 *Because of the result which we have reached it is not necessary to decide the other questions presented. This cause is therefore remanded with instructions to sustain the appellants’ motion for a new trial and for further proceedings not inconsistent with this opinion.
Landis, C. J. and Bobbitt, J., concur. Arterburn, J., concurs in result. Achor, J., dissents with opinion.. Fitzgerald, Trustee v. Goff (1884), 99 Ind. 28; Smithson v. Bouse (1917), 67 Ind App. 66, 118 N. E. 970; Fifer v. Rachels (1901), 27 Ind. App. 654, 62 N. E. 68; Rogers et al. v. Eich (1896), 146 Ind. 235, 45 N. E. 93; Bercot v. Velkoff (1941), 111 Ind. App. 323, 41 N. E. 2d 686; Henry et al. v. Carson (1884), 96 Ind. 412; Freeland v. Charnley et al. (1881), 80 Ind. 132; Anderson et al. v. Anderson et al. (1890), 126 Ind. 62, 24 N. E. 1036; McColley v. Binkley (1918), 69 Ind. App. 352, 121 N. E. 847; Bellin v. Bloom et ux. (1940), 217 Ind. 656, 28 N. E. 2d 53.