(dissenting) . ‘
I. do not concur in the majority opinion because I believe that it does not correctly state the law and reaches an inequitable result.
The first error is readily apparent in the first .paragraph of the syllabus which states that “the alteration of a deed subsequent to its delivery will not affect its interpretation as to the quantum of the estate thereby, conveyed.” While such statement is not objectionable as an abstract proposition, it certainly has no application to this case since the evidence does not reveal that the alteration of the deed in question was subsequent to its delivery and in fact does not reveal, that there was ever any delivery of such deed at all. The evidence reveals only that the deed in question was prepared by the scrivener at the request of grantors and executed by them on November 7, 1933, and that after such execution the deed was retained in the possession of grantors, who were husband' and wife. On July 9, 1937, the deed was placed of record by one of the grantors. At the time the deed was recorded it contained' restrictive provisions which had apparently been added after the original éxecution of the deed. The effect of the addition was to make the deed testamentary in character and therefore ineffectual as a deed. Dalton v. Burdick, 188 Okl. 446, 110 P.2d 297; Herren v. Herren, 152 Okl. 281, 4 P.2d 92. The deed as originally executed was never delivered. The only delivery of this deed was that presumed to result from its recording in its altered form by one of the grantors. The recording only gave rise to a, presumption that the deed was delivered in the form in which it was recorded, however. There is no possible basis for holding, as the majority opinion apparently does, that the recording o'f an instrument in a void form gives rise to a presumption of a delivery in a valid and different form.
It is of course elementary that a delivery is' essential to' the validity and' operation of a deed. Andrews v. English, 200 Okl. 667, 199 P.2d 202; Gulley v. Christian, 198 Okl. 167, 176 P.2d 812; And a deed only becomes operative as a conveyance from its delivery. Eldridge v. Vance, 138 Okl. 201, 280 P. 570. Since’'the deed as originally executed was never delivered, it never became operative as a conveyance. Only the deed as altered was ever delivered and therefore only the deed as altered could have ever become operative. The fact that the deed as altered was void and ineffective for a different reason could in no way supply the delivery necessary to the effectiveness of the deed as originally executed. The majority opinion says, however:
“Since it was established that there was nothing in the deed to invalidate it at the time it was executed, we think it became effective as a conveyance, in accord with the intention of its grantors (at that time) upon its delivery at a later date, and without regard to its alteration subsequent to its execution.”
The majority thus hold that one who decides to make a gift of realty and signs and acknowledges a deed accordingly, may not later, but prior to delivery of such deed, change his mind and alter the terms and conditions of the gift as set forth in the deed, and that if he attempts to do-so and delivers the deed in its altered form, he will be held to have delivered the deed and made the gift in its original form. I know of no authority for such a holding and do not believe it to be the law. In the first paragraph of the syllabus in Smith v. Smith, 170 Okl. 358, 40 P.2d 634, 635, we said :
“The expression of an intention to make a gift of real property is not a gift of such real property until the donor makes and delivers a deed to the donee conveying such real property to her, and the intention to make a gift of real property may be withdrawn by the donor at any time before the gift ■ is completed by the delivery of such deed,” (Emphasis added.)
If a donor can withdraw a gift completely prior to delivering the deed of gift, I see no reason why he could not likewise change *133the terms and conditions of the gift or the amount thereof prior to such delivery.
The majority opinion goes ahead to say:
“When said deed was delivered to the husband, T. F. Talley, for recording and forwarding to the grantee, Cecil Votaw, it then became absolute as a conveyance. That it was thereafter altered could not affect it as such conveyance, unless such alteration was done with knowledge, acquiescence, consent or ratification of Cynthia Talley, who, with the title solely in her name, was the only one who could convey such title.”
There is no basis whatsoever in the record in this case for such a statement. There is no evidence whatsoever that the deed was delivered to T. F. Talley for recording and forwarding to the grantee and thereafter altered. T. F. Talley was one of the grantors in the deed and the husband of the other grantor. The deed was a gift to a relative of T. F. Talley and not (as the majority opinion states) to a relative of Cynthia Talley. The majority say in effect that there being no proof to the contrary, we will presume that it was not Cynthia’s idea to postpone the effect of the deed until her death, that it was T. F. Talley’s idea but he couldn’t get Cynthia to agree to the change, that Cynthia delivered the deed to T. F. in its original form with instructions to record it, and that T. F. falsely altered the deed without authority, thus committing forgery. All this is pure presumption without any justification in the record. If there is a presumption of any kind in this case it is just the contrary of that made by the majority opinion. The law presumes honesty, fairness and innocence of crime until the contrary is proven. 20 Am.Jur. 217, 221 and 223; Oil State Refining Company v. Bryant, 110 Okl. 83, 236 P. 431; Texas Co. v. State ex rel. Coryell, 198 Okl. 565, 180 P.2d 631. In Farmers’ National Bank of Tecumseh v. McCall, 25 Okl. 600, 106 P. 866, 867, 26 L.R.A.,N.S., 217, we said:
“As a general rule, the law presumes in favor of innocence, and that an alteration in an instrument is a legitimate ■ part' of it until the contrary appears.”
The majority opinion now says, however, that we will presume the alteration-here to have been made, falsely, fraudulently,. dishonestly and without the knowledge and consent of the grantor in the absence of evidence to the contrary. -
■I am of the opinion that the deed to Cecil Votaw,. not having been ■ delivered in its original form and being void and .ineffective in its altered form, was of' no force and effect and that the trial court erred in quieting defendant in error’s title to the property in question based on such deed.
There is still another reason why the judgment of the trial court and the opinion of the majority are in error, and that is they reject the doctrines of election and estoppel which, in my. opinion,, are prpperly applicable in this case. In so doing they achieve a completely inequitable result by allowing Cecil Votaw to claim under a deed of gift and also to claim adversely to the same deed of gift and thus get a lion’s share of property intended for all four Votaw brothers equally. It should be borne in mind that there were four separate pieces of property owned by the Talleys and conveyed by them to the Votaw brothers, and two sets of deeds covering these properties. Under the first set of deeds, Cecil Votaw got all of the property involved here and none of the other three pieces of property and each of his .three brothers got one of the other three pieces of property. Under the second set of deeds Cecil Votaw got only an undivided one-fourth interest in the property here involved but also got a one-fourth interest in the other three pieces of property, and the same was true of his three brothers. Obviously the two sets of deeds were inconsistent and equity should not allow Cecil Votaw to claim' and receive all of. the property involved here under the first set of deeds'and at the same time claim and receive a one-fourth interest in the other three properties under the second set of deeds, and yet that is just what the majority opinion does.
The evidence conclusively establishes an election to take under the second set of *134deeds on the part of all parties concerned. The majority opinion recognizes this, saying:
“Said guardian and his successor, Mamie Votaw, the boys’ mother, handled the properties deeded the boys by Talley as if they were the joint property of all four and apparently divided the income therefrom in equal shares. In other words, from the way the guardians administered the properties they seemed to recognize the deed executed by Mr. Talley in 1937, rather than the one executed by both him and his wife in November, 1933.”
Actually the evidence goes much further than indicated by the majority opinion. The guardians not only divided the income from the property between the boys, as stated in the majority opinion, they also sold all of the properties except the one involved here and all four boys shared equally in the proceeds of the sales of these other properties. Only the property here involved remains and Cecil Votaw now claims all of it, after having already received one-fourth of the other three properties. Furthermore, not only did the guardians elect to take under the second .deed, but Cecil Votaw himself also elected after becoming of age by selling his one-fourth interest in some minerals reserved • by the guardian out of the Love County land, to which his only basis of title was the later deed by T. F. Talley to all four boys ■jointly.
. Although.it is clear that an election was made, the majority opinion refuses to recognize this election as binding, saying:
“As hereinbefore pointed out, after the entire fee simple title to the land was vested solely in Cecil Votaw by the deed of November 1933 * * *. After such vesting of the title, no conduct on the part of Cecil Votaw’s guardian or Cecil Votaw himself, short of the execution of an instrument competent, under our statutes, to alienate or convey title, could diminish the interest that had vested in him by the first deed.”
Such is not the law. There are many ways a person may lose his property without making a deed to it, such as by election, estoppel or adverse possession. Such holding completely repudiates the well-established law of election under a will or deed of gift. It is true that such law of election finds its most frequent application in connection with wills. See for example Carlile v. Harmon, 179 Okl. 303, 65 P.2d 495, 496, wherein this court said:
“If he shall take a beneficial interest in the estate under the will, equity will hold him to his choice, and it will be conclusively presumed that he intends thereby to ratify and conform to every part of it. This presumption of a ratification of the will on his part is applicable though the testator has attempted to give away property belonging to him. He cannot accept the instrument so far as it benefits him and reject it so far as it gives away his property, for it is against equity and good conscience that a person should hold property given or devised by virtue of the will which he should not do without it, and at the same time defeat some of its provisions by asserting his paramount claim to that which, by the will was intended to benefit others.”
See also 69- C.J. 1092 and 57 Am.Jur. 1060. That such principle is likewise applicable to deeds, however, see Pomeroy’s Equity Jurisprudence, 4th Edition, Vol. 1, Section 470, wherein it is stated:
“Doctrine Applies Both to Wills and Deeds. It may be added that the doctrine of election, as generally described in the foregoing paragraphs, applies to all instruments of donation,— to deeds, settlements, and the like, as well as , to wills, — although the cases involving it have most frequently arisen under wills.”
*135And in Harber v. Harber, 158 Ga. 274, 123 S.E. 114, 115, 33 A.L.R. 598, the court defines the doctrine of election as follows:
“The doctrine of election is based upon the salutary principle, that ‘he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing any right inconsistent with it.’ ”
Although the majority opinion refuses to adhere to the foregoing authorities, it cites no authority to the contrary. It cites only Annotations, 33 A.L.R. 601, 602, but that authority recognizes the correctness of the law of election and merely points out that the tmsuccessful assertion of a claim under or against a will does not amount to a conclusive election for or against' it. I am unable to see the applicability of such citation here, however. Certainly there has been nothing unsuccessful about Cecil Vo-taw’s assertion of a- claim under both sets of deeds up to this'time. On the contrary, the effect of the majority opinion is to make Cecil Votaw’s assertion of such claim eminently successful.
Closely akin to the law of election is the doctrine of estoppel, which in my opinion is also applicable here. It should be remembered that in this case Cecil Votaw and his grantee Fox are attacking the validity of the second set of deeds under which Cecil would only have one-fourth of the property involved here but under which he has already received one-fourth of the other three properties. In Kaylor v. Kaylor, 172 Okl. 535, 45 P.2d 743, we said that one knowingly receiving and accepting benefits of any part of a conveyance is estopped from denying the validity of such instrument or the authority to make and execute such instrument unless fraud is involved. To the same effect see 16 O.S.1951 § 11. Clearly under such rule Cecil Votaw is estopped to question the title of his brothers to their interest in the property involved here.
For the foregoing reasons I believe that the judgment herein should be reversed and I therefore respectfully dissent.