(dissenting).
This is an unfortunate lawsuit in which a brother and a sister are litigating the question of the ownership of an interest in a piece of land. It is a matter of equitable cognizance and has been decided by the trial judge in favor of the brother. If his decision is not against the clear weight of the evidence it should be affirmed.
The principal question for determination was whether a deed had been delivered to the brother prior to January 30, 1945, when a second deed was executed, delivered and filed for record.
There is no question but that the first deed was executed. It was dated December 27, 1940. This deed was not filed for record until November 11, 1951.
The sister claimed that this deed was never delivered to her brother but that he extracted it from her father’s files long after her father’s death. Another .brother so testified. The mother of these lititgants testified, then almost 77 years old, that the deed was not delivered but admitted she turned the deed over to her husband after she and he executed it.
The brother, Orva Peck, testified that his father gave him the deed executed in 1940 to secure him for some money he advanced for his father. He further tesified that his sister Faye Brown had promised him if he would deed back to their father’s estate a certain farm which stood in his name she would deed a certain twenty acres that stood in her name back to the estate. After he performed his part of this agreement she refused to go through with her part of the agreement. He then decided to put the deed on record that his father had delivered to him in 1940. He gave to each of his brothers and sisters a one-seventh interest in the land except his sister Faye Brown. He refused to deed her the one-seventh because she had reneged on the twenty acre deal.
A sister Fleda testified she saw the deed to her brother Orva in his possession in 1941 or 1942.
We have then the testimony of the mother that the deed was not delivered to Orva although the deed was not in her control and that of the oldest son Daye Peck that he saw Orva take it out of his father’s papers in 1949. On the other hand we have the testimony of Orva that his father delivered the deed to him and his sister Fleda testified she saw the deed in Orva’s possession before her father died.
The evidence further shows that Orva paid a note at the Bank in Duncan which included $670 that went into an automobile *911for Faye Brown and her mother.. There was evidence that Orva assisted his parents in the depression years.
How can we say now that the decision reached by the trial judge was against the clear weight of the evidence? As I view the evidence it was not. There was more testimony that established that the deed was delivered than there was that it was not.
It is to be remembered that where a grantee is in possession of a duly executed deed, presumption in favor of delivery can only be rebutted by clear, positive evidence to the contrary. Fisher v. Pugh, Okl., 261 P.2d 181 and Wasson v. Collett, 204 Okl. 360, 230 P.2d 258. See also 26A C.J.S. Deeds § 204.
I dissent.
I am authorized to state that JOHNSON, J., concurs in the views expressed herein.