In the case of Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 53 South. 812, this court, in discussing what would and what would not operate as a delivery of a deed, among other things, said: “If, on the other hand, he parts with the control of the deed, or does any act, or says anything, whereby he evinces an intention to part with the dominion over it and to pass it to the grantee, though he may retain the physical custody of the instrument, or whether it be turned over to another or placed upon the record, the delivery is complete, if made with the intent that it was to so operate, and regardless of what was said and done in order to perfect same.” See also, the cases of Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500; Arring*662ton v. Arrington, 122 Ala. 510, 26 South. 152; Griswold v. Griswold, 148 Ala. 241, 42 South. 554, 121 Am. St. Rep. 64.
In the case at bar, the only positive proof of a physical delivery by A. L. Chambless of the deeds to Martha Farr and George Chambless is the evidence of Martha, which should probably be excluded, under the statute, as a transaction by an interested person Avith the deceased; but avíth this evidence excluded there is an abundance of legal e\ddence which creates a reasonable inference of the delivery of said deeds. Martha is found in possession of them, and delivered them to George to be recorded; they were duly acknoAvledged, and Avere made at or about the same time as deeds to other children, Avhich Avere delivered. There Avas nothing clandestine about the transaction, and the deeds Avere made by A. L. Chambless, pursuant to an often-repeated desire and intention to make an equitable disposition of his property betAveen his children. He reserved a life interest in the lands deeded Martha, and attempted to deliver the deeds to his son, J. G. Chambless, to give to Martha and George after his death, and the son gave them back to him, and told him to take them and give them to Martha. The grantor madé frequent declarations in the neighborhood, and to some of his sons and sons-in-law, that he had deeded the home place to Martha and the “Jack Patch” to George, stating, in effect, that they Avere made in order to give them an equitdble interest in his estate, as compared Avith what he had preAdously advanced the complainant, and Avith the property that he had deeded to, or expected to deed to, the other children, and to further compensate them for their interest in their mother’s estate, which had been consumed by him in providing for some of the other children. Taking all of the facts and surround*663ings into consideration, the most reasonable inference to be deducted. therefrom is a delivery of the deeds made to Martha and George.
There was proof on the part of complainant that A. L. Ohambless was insane when the deeds were made; but the burden was on him (the complainant) to establish insanity, and while the great weight of the evidence shows that the grantor was insane at or prior to his death, the respondents’ evidence shows that the said grantor’s mind did not become seriously impaired until he suffered a severe spell of sickness the fall succeeding the execution of the deeds, and that he was in a. sound state of mind prior to said attack, and we are inclined to accept the respondents’ theory, as the burden of proof was on the complainant, and the evidence is almost equally divided. Moreover, .the equity and justness of the transaction bespeak the action and thought of a sound, rather than a diseased, mind. We also think the evidence is sufficient to refute the imputation of undue influence, regardless of the age of the grantor and the fact that he resided with his daughter. The deeds operated as an equitable division of his property, with perhaps, a slight preference, as to value, in favor of his youngest daughter, with whom he resided, but which said difference in value was in a measure offset by the reservation of a life estate in the land.
It is true there is a discrepancy in the testimony of Martha as to when she gave George the deed to have recorded; but the human memory is frail and inaccurate as to exact dates, and this said discrepancy is not sufficient to overcome the reasonableness and good faith of the transaction. Nor was the refusal of George to defend the case and testify sufficient to create the inference that the deeds were falsely or surreptitiously-procured from the grantor. The suit was in Jackson coun*664ty, and as the lands are located in Marshall, George may have believed, as he contended, that the bill should have been filed where the lands were located.
It has been suggested in brief of appellee’s counsel that this case must be affirmed upon the theory that some of the appellants were not prejudiced by the decree of the lower court, and in support of this contention he cites the case of Rudulph v. Brewer, 96 Ala. 193, 11 South. 314, and Bedell v. Mortgage Co., 91 Ala. 325, 8 South. 494. These cases apply to a joint assignment of error when some of the appellants were not injured or prejudiced by the decree. In the case at bar, there is a severance in the assignment of error, and error is separately assigned by those who were prejudiced by the decree from which the appeal was taken.
The decree of the chancery court is reversed, and one is here rendered, dismissing the complainant’s bill.
Reversed and rendered.
All the Justices concur, except Dowdell, C. J., not sitting.