The respondents moved for a rehearing.
In support of the motion there were briefs by Henry E. Foelske, attorney for respondents, and Christian Doerfler, of counsel, both of Milwaukee.
In opposition thereto there was a brief by Arnold C. 0 tto of Milwaukee, attorney for the appellant.
The motion was granted on May 27, 1919, and the cause was reargued October 11, 1919.
The following opinion was filed December 2, 1919:
Winslow, C. J.The reargument has convinced us that we were in error in reversing the judgment in this case, and the former 'opinion must be considered as withdrawn and the judgment of reversal set aside.
The trial court’s findings were that both deeds were delivered with the intention of conveying the property, but this court held that these findings were contrary to the clear preponderance of the evidence and- that the evidence demon.strated that the deeds were understood by all parties to be testamentary documents only and were never delivered with intent that they should take effect as deeds. We now think that this was an erroneous-holding. The only direct testimony as to what was done with the deeds after their execution was the testimony of Frank Suelfiow, the real-estate man, the grantee named in the first deed. He testified directly that Mr. Witt executed the first deed running to him (Suelfiow) and gave it to him, and that he then had an-' other deed made out signed and executed by himself and wife, and that he (Suelfiow) gave both deeds to Mrs. Witt *563for the purpose of conveying the property to her. No witness details the conversation which occurred on either occasion, but Suelflow says, and in this testimony is sustained by Damkoehler, that Witt wanted to deed his property to his wife because he was sick and he might die, and in case he died the property would be assigned to his wife, and that the deeds were not to be recorded until after his death. The appellant’s proposition is in brief that this evidence last referred ,to overcomes the inference of delivery naturally to be drawn from the manual tradition of the deeds.
Mature consideration convinces us to the contrary. The conclusion rather is that the deeds were intended to be-legally effective at once (in the sense of not being subject to revocation), but were expected not to pass the title until the happening of an outside event, namely, the death of the grantor; in other words, the grants were upon condition.
No court has more positively or consistently held that there cannot be a conditional delivery of a deed to the grantee himself than this court. In Hinchliff v. Hinman, 18 Wis. 130, it was held that if a deed is executed and delivered with intent to pass the estate to the grantee it must so operate though both parties supposed that it would not take effect until recorded and also supposed that while unrecorded the grantor might control or revoke it. In Lowber v. Connit, 36 Wis. 176, it was said that if a grantor of land does not intend his deed to take effect until some condition is performed he must keep it to himself or leave it in escrow with a stranger and not deliver it to the grantee. In Prutsman v. Baker, 30 Wis. 644, the subject of conditional delivery of a deed was discussed by Chief Justice Dixon, who said: “A conditional delivery is and can only be made by placing the deed in the hands of a third person, to be kept by him until the performance of some condition or conditions by the grantee or some one else, or until the happening of some event” when it is to be delivered by the depositary to the grantee. These cases were followed in Rogers *564v. Rogers, 53 Wis. 36, 10 N. W. 2, in which it was held that if a grantor did not wish his deed to go into effect at once he should keep it to himself or place it in the hands of a stranger and not deliver it to the grantee. And these'cases are in accord with the general current of authority to the effect that a delivery in escrow or upon conditions cannot be made to the grantee himself, and that such a delivery at once becomes absolute and the supposed conditions are of no effect. 18 Corp. Jur. p. 211; 16 Cyc. 571; 1 Warvelle, Vendors, p. 517; Worrall v. Munn, 5 N. Y. 229; Braman v. Bingham, 26 N. Y. 483; Wallace v. Berdell, 97 N. Y. 13; Blewitt v. Boorem, 142 N. Y. 357, 37 N. E. 119; Hamlin v. Hamlin, 192 N. Y. 164, 84 N. E. 805; Hovey v. Hovey, 170 N. Y. Supp. 822, affirmed 183 App. Div. 184; Beers v. Beers, 22 Mich. 42; Wipfler v. Wipfler, 153 Mich. 18, 116 N. W. 544; Fairbanks v. Metcalf, 8 Mass. 230; Fletcher v. Shepherd, 174 Ill. 262, 51 N. E. 212; Blake v. Ogden, 223 Ill. 204, 79 N. E. 68.
The reason of the rule is quite obvious. If it were possible to prove in every case that parol conditions were attached to the formal delivery of a deed, there would be no safety in accepting a deed. Titles would be open to attack at all times, and the practical result would be to defeat the solemn provisions of a duly executed and formally delivered deed by parol testimony. There were circumstances .in the present case tending quite persuasively to show that both Mr. and Mrs. Witt supposed that the title remained in Mr. Witt during his life, but of course their erroneous impression as to the legal effect of the transaction could not control that effect. If the law is, as we now hold, that such conditional delivery made to the grantee at once becomes- an absolute delivery freed of the supposed conditions, then the controversy here is closed, because the title at once passed in spite of the idea of the parties that it was not to pass until after Mr. Witt’s death.
There are authorities justifying more or less satisfactorily our former holding, some of which will be found cited *565in the former opinion. It will be found, however, on close examination of most of these cases that they are cases where, although the grantee had manual possession of the deed, it affirmatively appeared that the grantor retained control over it. Conceding in the present case that there is some testimony tending to show that the grantor expected to retain control over the deeds, it certainly cannot be said to be sufficient to overturn the findings of the trial court that the deeds were delivered with intent to convey the property. These findings are founded on sufficient affirmative evidence, are not against the clear preponderance of the evidence, and hence must stand.
By the Court. — Judgment affirmed.
Siebecker and Vinje, JJ., dissent.A motion by appellant for a rehearing and for a modification of the mandate as to costs, made December 31, 1919, was denied, with $25 costs, on February 10, 1920.