(dissenting).
I am unable to agree that the judgment of the trial court is in accord with the evidence and not clearly against the weight thereof.
The simplest mode of delivering a deed is by manual transfer of deed by the grantor to the grantee, with the intention of relinquishing all control over the instrument and of passing title to the property. It is clear that if the grantor hands the deed to the grantee personally, without saying or doing anything to qualify the significance of such act, an effective delivery is made. See 16 Am.Jur., Deeds, 122, and cases cited in note 6 thereunder. The evidence in the case at bar reveals, without contradiction, that the deed in question was executed and acknowledged by the grantor and handed to the grantee who took the same and placed it in his personal safety deposit box where it thereafter remained until placed of record by the grantee some years later. What more could the grantor have done to effectively pass the title to the property involved to the grantee? The majority opinion refers to certain evidence with reference to the acts and statements of the grantee, Mr. Wheatley, and apparently relies thereon for its holding that the grantor, Mrs. Wheatley, had no present intention to pass title to the property in question to her husband. As is pointed out in the majority opinion, however, the question involved is the intention of the grantor, that is, Mrs. Wheatley.
It seems that the evidence concerning the activities and statements of the grantee, Mr. Wheatley, should not be considered determinative of the intention of the grantor. There appears to be practically no evidence in the record of any acts or statements on the part of the grantor which would negative an intention on her part to pass title to the property in question to her husband.
The case of In re Griffin’s Estate, 199 Okl. 676, 189 P.2d 933, 938, appears to be squarely in point with the case at bar. There we said:
*992“The appellants contend that the fact of delivery is negatived by the fact that Mr. Griffin continued to exercise full control over the lands by renting them for oil and gas and agricultural purposes, collecting the rents, and paying the taxes. These circumstances would be entitled to weight as to the intention of the grantor were it not for the fact that the parties were husband and wife. We think the presumption of delivery was not overcome by this evidence.”
In the case at bar, the grantor and grantee of the deed in question were also husband and wife and I am of the opinion that the same rule should apply. Furthermore, in the case at bar, it is not necessary to rely on the presumption of delivery, since the evidence of actual delivery is clear and uncontradicted.
The only possible evidence in this record which might tend to negate the intention of Mrs. Wheatley to transfer the title of the property to her husband is that Mrs. Wheatley verified the petition to quiet title to the property in a suit brought in her name. On this point, however, plaintiff offered testimony of the attorney who prepared and filed the suit, but the trial court sustained an objection to the attorney’s testimony, apparently on the theory that it would constitute a privileged communication. In this respect the court was in error. The evidence revealed that the attorney in question had been employed by the plaintiff, Mr. Wheatley, and that Mrs. Wheatley had never conversed with the attorney in any manner. Any privilege attaching to the conversation between Mr. Wheatley and his attorney would, of course, be solely for the benefit of Mr. Wheatley. Here, however, Mr. Wheatley, the plaintiff, was the party offering the testimony and obviously waived any privilege which might have accrued to him as to his conversation with his attorney. Under such circumstances, the rejection of the proffered testimony was error. In this regard the majority opinion agrees that the court was in error, but holds that the error was harmless, because the testimony would not have affected the outcome of the case.
This testimony was material since it directly concerned the only act on the part of the grantor, Mrs. Wheatley, of which there is any evidence in the record, which might tend to negate her intention to pass title to the property in question to her husband. It occurs to me that plaintiff has in effect been denied the right to offer competent evidence on the very point upon which the case has been decided against him.
It should also be kept in mind that the burden of proving that the deed in question was never in fact delivered, rests squarely upon the defendant, who alleges such non-delivery and that such proof must be by clear and convincing evidence. McKeever v. Parker, 204 Okl. 1, 226 P.2d 425.
Being of the opinion that the defendants failed to sustain this burden and that the finding of the trial court that the deed in question had never been delivered is clearly against the weight of the evidence and is not supported by the evidence, and that the judgment- of the trial court should be reversed, I therefore respectfully dissent.
I am authorized to state that Mr. Justice DAVISON concurs with the views herein expressed.