*702OPINION DENYING A REHEARING.
The opinion of the court was delivered by
Mason, J.:In a petition for a rehearing it is suggested that the court has not sufficiently indicated the grounds upon which earlier decisions of the court cited in the appellant’s brief are not regarded as controlling. Upon 'the question of the right to a jury trial the petitioner quotes the syllabus in Gordon v. Munn, 83 Kan. 242, 111 Pac. 177. The language there used, as in judicial opinions generally, must be interpreted in the light of the particular facts to which it was applied. A claimant out of possession, who has open to him the remedy of ejectment, cannot escape a jury trial of the question'of fact on which his claim depends by presenting that issue in some form of equitable action. But a claimant in possession, to whom ejectment is not available, may maintain an action to quiet title (Butts v. Butts, 84 Kan. 475, 478, 114 Pac. 1048), and his opponent is not guaranteed a jury merely because the controversy involves the ownership and in a sense, and remotely, the right of possession (inasmuch as such right depends upon ownership), that being true of most actions of that character.
The petitioner regards the facts in Alward v. Lobingier, 87 Kan. 106, 123 Pac. 867, so similar to those of the present case as to require the grounds of distinction to be stated. The cases are alike in that in each the deed, the delivery of which was in question, was handéd by the grantor to the grantee, and by the grantee returned to the grantor, who retained it until death. But to the court the attendant circumstances' appear to make an obvious difference in the legal effect of this action. There the findings show that the grantor handed the deed to the grantee, asking her to read it, and in the same conversation saying that she (the grantor) desired to retain the deed in her own possession so that she might continue to reside in the property until her death. The expressed purpose of the manual delivery to the grantee was merely that shé might read it, which (in the judgment of this court) excluded the inference of an intention to make the kind of delivery that would pass title; and the expressed purpose of retaining possession by the grantor was that she might hold the property during her lifetime, which (in the judgment of this court) was inconsistent with an intention that the deed should take effect immediately *703because it purported to convey to the grantee at once all rights to the property, without reservation. Here there was evidence to the effect that the grantor said, speaking of the manual delivery of the deed to his son: “You know a deed is not good until it is delivered, and I gave Ernest his deed that night.” This appears to the court to be some evidence that the delivery referred to was made with a present purpose that the title should pass. There was also evidence that the purpose of the grantor in having the deed again placed in his hands was that he might be assured that its existence should not be made public by its being recorded, whereby family dissensions might arise —a purpose which the court regards as entirely consistent with an intention that the title should vest in the grantee at the time of the original delivery.-
The petition for a rehearing is denied.