I dissent. It is my view that the dissenting opinion of Mr. Justice McComb of the District Court of Appeal, Second District, Division Two (Osborn v. Osborn (1953; Cal.App.), 256 P.2d 653, 657), correctly disposes of the legal issues presented by the undisputed facts alleged, proved, and found in this case. I shall state the facts in somewhat greater detail than they are stated by Justice McComb in order that I may hereinafter point out those facts which, in my opinion, have caused the majority of this court to announce an erroneous view of the applicable law.
In order to compromise a dispute as to who was entitled to the property of Chloie I. Osborn, deceased mother of plaintiff Merinoeth and wife of Thomas D. Osborn, plaintiff and Thomas on June 27,1939, executed a contract entitled “Stipulation.” The validity of this contract is not questioned. On *373July 21, 1939, such contract was filed in the proceeding for probate of the estate of Chloie I. Osborn. It provides in material part that the probate court may set aside disputed real property (Lot 97) to Thomas as having been the homestead of Thomas and Chloie; that Thomas “will execute either by deed, contract or declaration of trust sufficient documents, conveyances or declarations so that . . . Lot 97 . . . will be retained in the name of Thomas D. Osborn, during his lifetime and that the same should vest in his son Merinoeth R. Osborn at the time of the demise of the said Thomas . . . [A] 11 income on the property will go to and belong to Thomas D. Osborn during his lifetime and out of the said sum of monies received, he will pay all ordinary and usual expenses, such as, maintenance, taxes, repair and ordinary improvements due to wear and tear. Any surplus from said amounts shall belong to Thomas . . . This Stipulation shall be binding upon the heirs, executors, administrators and assigns of the parties hereto. ’ ’
Pursuant to this agreement the probate court on July 21, 1939, determined that Lot 97 had been the homestead of Thomas and Chloie and set it aside to Thomas as his separate property.
On July 7, 1939, Thomas signed a grant deed of Lot 97 to plaintiff Merinoeth, “reserving to the grantor the exclur • sive possession and the use and enjoyment in his own right of the rents, issues and profits of said property . . . during the term of his natural life. This deed is executed in accordance with the terms and conditions of that certain trust agreement of July 7th, 1939, . . . and is subject to all conditions, exceptions and reservations as in said trust agreement provided.”
The “trust agreement” of July 7 provides that “the said deed is to be turned over and delivered to the trustees herein [Finkenstein and Warner] to be used, delivered and held under the terms and conditions in this agreement set forth”; the deed shall reserve to Thomas, the grantor, a life estate and “the right to revoke the deed in the event second party [Merinoeth] wilfully harms grantor, and second party reserves the right to cancel this agreement if grantor wilfully harms second party”; the only powers and duties of the trustees are to keep the deed and not record it during the life of Thomas and to deliver it to Merinoeth only on the death of Thomas, and to defend against any attempt by *374either party “to break the terms of the within trust agreement” ; Thomas “agrees to will any and all right, title, or interest he may have in said real property to” Merinoeth; the agreement is binding on the heirs, executors, and assigns of the parties; and “the wilful failure or refusal of either party to comply with the obligations herein provided, on his part to be performed, shall permit either party to rescind this agreement and shall confer upon the grantor the right to cancel the within mentioned deed and this agreement.” On January 14, 1946, Merinoeth, Thomas, and the trustees executed an “agreement cancelling trust agreement.” In March, 1946, by an exchange of letters, the parties agreed to rescind the cancellation agreement. These two agreements were executed in the course of unsuccessful negotiations between Thomas and plaintiff for the purchase by Thomas of plaintiff’s interest in Lot 97. Evidence of the negotiations and the cancellation agreements and accompanying letters has probative value as it tends to show that Thomas recognized that Merinoeth had a valuable remainder interest.
The opinion of Justice MeComb disposes of the issues raised by the above stated facts in the following manner:
“Questions: First: Did the trial court properly decline to quiet title in the parcel of land in question m plaintiff ? “Yes. The following rules are here pertinent:
“ (1) An escrow is a written instrument or personal property which is delivered to a third party by the grantor, maker, promisor or obligor to be held by the depositary until the happening of a designated event or the performance of a designated condition and then to be delivered to the grantee, promisee or obligee. (Civ. Code, § 1057. See also cited eases in 10 Cal.Jur. [1923] Escrows, § 1, n. 2, p. 576.)
“ (2) When a deed is deposited by a grantor with a third person to be handed to the grantee on the death of the grantor . . . without any intention of a present transfer of title, but on the contrary, with the intention of the grantor to reserve the right of dominion over the deed and the right to revoke or recall it there is no effective delivery. . . . (Williams v. Kidd [1915], 170 Cal. 631, 637 et seq. [151 P. 1, Ann.Cas. 1916E 703].)
“(3) Plaintiff in a quiet title action must depend on the strength of his own title and not on the weakness of that of defendant. Thus, if he fails to prove title in himself, he is not entitled to recover. (Alspach v. Landrum [1947], 82 Cal.App.2d 901, 903 [1] [187 P.2d 130]; Tanner v. Title *375Ins. & Trust Co. [1942], 20 Oal.2d 814, 825 [13] [129 P.2d 383].)
“Applying the foregoing rules to the facts in the present case we find that under rule (1) the handing of the deed to defendants Finkenstein and Warner created an escrow, and since Mr. Osborn reserved the right to revoke or cancel the deed upon the happening of certain conditions, there was no intent to make an unconditional delivery of the deed. Therefore, it not having been delivered to plaintiff prior to his father’s death, under rule (2) the deed was never delivered and no title passed to plaintiff. Hence, under rule (3), plaintiff having failed to prove title in himself the trial court properly held that he was not entitled to have title quieted in him.
“Second; Was there substantial evidence to sustain the trial court’s finding that the transaction between the parties did not create a trust agreement but merely created an escrow?
“Yes. The transaction falls squarely within the definition of an escrow as set forth under rule (1) supra. There is a total absence of any of the elements of a trust agreement. Therefore the court’s finding is supported by substantial evidence. ’ ’
The majority herein proceed upon the fallacious premise that “Thomas was bound by the terms of the trust agreement, executed contemporaneously with the deed, not to attempt to recall the deed from the possession of the trustees . . . Thomas did not retain control over the deed after he delivered it to the trustees. There is nothing in the trust agreement, or external to it, to indicate that Thomas did not intend the transmission of the deed to the trustees to be a valid legal delivery.” Obviously such “finding” by the majority invades the province of the trier of fact and draws inferences from both the documents and the surrounding circumstances contrary to those drawn by the trial judge. Why was an escrow created and conditions for cancellation specified if the delivery was unconditional ? Furthermore, I cannot agree that .“Thomas was bound by the terms of the trust agreement.” The signing by Thomas of the July 7 trust agreement and deed was, at best, an ineffective attempt to perform the June 27 agreement. It appears that the June 27 agreement, rather than the trust agreement, was binding and enforceable. And the June 27 agreement has never been discharged by performance or otherwise.
*376The majority opinion here appears to be an attempt to give, or to lay the foundation for giving, plaintiff Merinoeth and the nonappealing cross-complainant Louise a remedy akin to quasi-specific enforcement of the June 27 agreement. But that is a remedy which Merinoeth should have sought against the representatives of the estate of his deceased father, and Merinoeth has not seen fit to institute such proceedings and proceed on such a theory.
For the reasons above stated I should affirm the judgment.
Appellant’s petition for a rehearing was denied March 25, 1954. Carter, J., and Schauer, J., were of the opinion that the petition should be granted.