This is a statutory action in the nature of ejectment. The trial court gave the affirmative charge for the plaintiff. The correctness of this ruling is the basis of all errors assigned.
Whether this ruling was right or wrong depends upon the question whether or not the delivery of a deed from the appellant (the defendant below) to his daughter was proven without dispute. If the delivery of this deed *555was proven without dispute, the trial court properly gave the affirmative charge for the plaintiff; hut if the delivery thereof, under the evidence in this case, was a question of fact to be found by the jury, then, of course, it was error to direct a verdict for the plaintiff, because, unless this deed was delivered, the plaintiff showed no title against the defendant.
It is conceded that, if this deed was delivered, the title to the land in question had passed out of the defendant and into the plaintiff by other mesne conveyances. The evidence was without dispute that the defendant and his wife signed and acknowledged the deed in question, and that the defendant, the grantor, sent it to the probate office to be recorded, and that it was so recorded at his request, and thereafter returned to him according to his request and instructions.
Whether the deed, at any time, ever passed from under his control, and into the hands, or under the control of his daughter, the grantee, was, as we read the evidence, in dispute. While there was abundant evidence from which the jury could infer a delivery to the grantee by the-grantor, there was also evidence, if believed, from which they might find that there was, in fact, no such delivery. There was'evidence which, if believed by the jury, rebutted the prima facie case made out, by showing that the deed was signed and acknowledged by the grantor, and was recorded at his request. It was error, therefore, to take the question of delivery from the jury.
Reversed and remanded.
Dowdeee, C. J., and Anderson and de Graffenried, JJ., concur.