The objections to the leading character of the questions by the prosecuting attorney should be avoided, as well as untimely interruptions by defendant's counsel on a retrial of the

cause.

EVIDENCE-DYING DECLARATIONS-WHEN ADMISSIBLE.-To entitle state. ments of a deceased not made under oath to be admitted in evidence as dying declarations, it must be clearly shown that such statements were made with a full knowledge and belief that death was imminent, and that there was no expectation or hope of recovery: State v. Furney, 41 Kan. 115; 13 Am. St. Rep. 262; Anthony v. State, Meigs, 265; 33 Am. Dec. 143, and note; McDaniel v. State, 8 Smedes & M. 401; 47 Am. Dec. 93, and note; Hussey v. State, 87 Ala. 121; Fulcher v. State, 28 Tex. App. 465; State v. Bradley, 34 S. C. 136; State v. Kindle, 47 Ohio St. 358; Commonwealth v. Cooper, 5 Allen, 495; 81 Am. Dec. 762, and note; People v. Vernon, 35 Cal. 49; 95 Am. Dec. 49, and note at page 56; State v. Wilson, 24 Kan. 189; 36 Am. Rep. 257. See, also, the extended note to Field v. State, 34 Am. Rep. 479.

EVIDENCE-DYING DECLARATION-ADMISSION QUESTION FOR COURT.-It is largely in the discretion of the trial court to permit preliminary proof to the introduction of deathbed statements of the deceased to be given to the court in the presence of the jury: State v. Furney, 41 Kan. 115; 13 Am. St. Rep. 262; Klehn v. Territory, 1 Wash. 584. It is the province of the judge to determine from all the circumstances whether, in a prosecution for inurder, the dying declarations of the deceased are admissible: State v. Baldwin, 79 Iowa, 714; McDaniel v. State, 8 Smedes & M. 401; 47 Am. Dec. 93. The admissibility in evidence of dying declarations is a blended question of law and fact: State v. Trivas, 32 La. Ann. 1086; 36 Am. Rep. 293.

EVIDENCE-JUDICIAL NOTICE-MATTERS OF COMMON KNOWLEDGE.-Courts must take judicial notice of that which is a matter of common knowledge and experience: Gaynor v. Old Colony etc. Ry. Co., 100 Mass. 208; 97 Am. Dec. 96. See, also, the note to Lanfear v. Mestier, 89 Am. Dec. 663.

DEED, DELIVERY OF, WHEN SUFFICIENT.-If a person named as grantor in a conveyance receives of the grantee a lease of the same premises for the term of the grantor's life, and the grantor in company with the grantee takes both instruments to a bank and delivers them to the cashier, with an indorsement to deliver them to the grantor, and in the event of her death, to the grantee, and subsequently speaks of the conveyance as the grantee's deed, these facts justify a finding that such conveyance had been delivered, and had become operative in the lifetime of the grantor, if she died without ever having called for the deed.

DEED. THE QUESTION OF DELIVERY IS ONE OF INTENTION, and the delivery is complete when there is an intention manifested on the part of the grantor to make the instrument his deed.

E. P. Caldwell and J. L. Staats, for the appellant.

Luce and Luce, for the respondents.

98 PEMBERTON, C. J. This is a suit in ejectment instituted in the court below by appellant as administrator of Rebecca Githens, deceased. The complaint is such a one as is ordinarily employed in such actions. The answer contains a denial of all of the material allegations contained in the complaint, and alleges affirmatively that the deceased was not the owner of the demanded premises at the time of her death, but was the tenant of the respondents; that, as she did not die seised of any estate in the premises, her administrator, the appellant, cannot maintain this action. Both parties in the court below having expressly waived a jury, the case was tried by the court. The findings and judgment of the

court below were in favor of the respondents. The appellant filed his motion for a new trial, which was overruled, and from the order of the court, overruling his motion for a new trial, this appeal is taken.

The facts of the case are substantially as follows: "The deceased, Rebecca Githens, was the mother of the respondents. On the second day of January, 1888, the deceased, who was then seised in fee of the premises in dispute, executed a deed to the demanded premises to the respondents. On the same day the respondents executed a lease to the same premises to the deceased for the term of her natural life, and delivered the same to the deceased. The proof is not positive that the deed was actually then delivered by the grantor to the grantees; that is, by manual delivery. Some months after the execution of 99 the said deed and lease, the deceased, in company with Mrs. Flaharty, one of the grantees, took both of said instruments to the Gallatin Valley Bank, and delivered them to the assistant cashier. This inscription was written on the outside of said paper: "To deliver to Mrs. Githens, and, in case of her death, to Mrs. Flaharty." Mrs. Githens died some months after the delivery of these papers to the bank, without even calling for them, and without even attempting or expressing any desire to regain the possession of them. After the death of Mrs. Githens the papers were delivered to Mrs. Flaharty. While these papers were in the bank, Mrs. Githens spoke of them to witnesses, saying the "girls' deed" (meaning the respondents) was in the bank. The evidence also shows that the deceased occupied the demanded premises under said lease from its execution until her death. After the death of Mrs. Githens the respondents took possession of the demanded premises, and have exer cised control thereof ever since. The deceased, in her lifetime, while said papers were in the bank, spoke of both the deed and lease being in the bank, and of the deed as belonging to the respondents. Upon this showing of facts appellant contends there was no delivery of said deed; that the deceased never lost control over it during her lifetime, and that the delivery thereof was void. Counsel for the appellant concedes that if the deed was delivered he has no case. Respondents, of course, claim that the deed was delivered. What, then, is a delivery? And how can the delivery be shown?

In 5 American and English Encyclopedia of Law, page 447, we find this doctrine asserted: "The intention always

controls the determination of what constitutes a sufficient delivery; and it may be manifested by acts or by words, or by both, in the most informal manner. But either acts or words manifesting the intention must be present, in order to constitute a good delivery. But the deed need not be actually delivered, if the grantor intends the execution to have the effect of a delivery, and the parties act upon this presumption. Delivery will be presumed from the fact that the deed was executed before the witnesses, and declared to be delivered in their presence": And see cases cited in notes. In Washburn on Real Property (vol. 3, 5th ed., p. 305, par. 100 28) the author says: "Thus, a deed may be delivered to the grantee himself, or it may be delivered to a stranger unknown to the person for whose benefit it is made, if so intended by the maker; and this may be an effectual delivery the moment it is assented to by the grantee, even though the grantor may in the mean time have deceased": See authorities cited in note.

In Devlin on Deeds (vol. 1, sec. 262) the author holds the doctrine of delivery of a deed to be one of intention: "As no particular form of delivery is required, the question whether there was a delivery of a deed or not, so as to pass title, must in a great measure, where it is not clear that an actual delivery has been effected, depend upon the peculiar circumstances of each particular case. The question of delivery is one of intention, and the rule is that a delivery is complete when there is an intention manifested on the part of the grantor to make the instrument his deed. The doctrine. seems to be settled beyond a reasonable doubt,' remarks Justice Atwater, 'that where a party executes and acknowledges a deed, and afterwards, either by acts or words, expresses his will that the same is for the use of the grantee, especially where the assent of the grantee appears to the transaction, it shall be sufficient to convey the estate, though the deed remains in the hands of the grantor. . . . . The main thing which the law looks at is whether the grantor indicates his will that the instrument should pass into the possession of the grantee; and, if that will is manifest, then the conveyance inures as a valid grant, although, as above stated, the deed never comes into the hands of the grantee.' A deed does not become operative until it is delivered with the intent that it shall become effective as a conveyance. Whether such intent actually existed is a question of fact to

AM. ST. REP., VOL. XL.-27

be determined by the circumstances of the case, and cannot, in the majority of instances, be declared as a matter of law. A deed was held complete and valid where it had been prepared for execution, read, signed, and acknowledged before a proper officer, notwithstanding the testimony of the witnesses present at its execution that there was no formal delivery, and the fact that the deed, after the grantor's death, was found among his private papers in his desk."

In Doe dem. Garnons v. Knight, 5 Barn. & C. 671; 11 101 Eng. Com. L. 632, Bayley, J., holds that "where a party to an instrument seals it, and declares, in the presence of a witness, that he delivers it as his deed, but keeps it in his own possession, and there is nothing to qualify that, or to show that the executing party did not intend it to operate immediately, except the keeping of the deed in his hands, it is a valid and effectual deed; and delivery to the party who is to take by the deed, or to any person for his use, is not essential"; and cites a great number of cases in support of this doctrine.

In Wheelwright v. Wheelwright, 2 Mass. 447; 3 Am. Dec. 66, a case very similar to the one at bar, Parsons, C. J., delivering the opinion of the court, holds that "a deed signed, sealed, delivered, and acknowledged, which is committed to a third person, as the deed to the grantor, to be delivered over to the grantee, on a future event, is the deed of the grantor presently; and the third person is a trustee of it for the grantee."

In Woodward v. Camp, 22 Conn. 459, 460, Waite, J., speaking of what constitutes a valid delivery of a deed, says: "And, in order to constitute a valid delivery, it is not necessary that it should be delivered personally to the grantee. It will be sufficient if delivered to some third person for the use of the grantee, although the latter was not present at the time, had no knowledge of the existence of the deed, and never gave any authority to the person receiving it to act in his behalf: Merrills v. Swift, 18 Conn. 257; 46 Am. Dec. 315. And if a deed be delivered to a third person, to be by him kept, during the life of the grantor, subject to his order, and at his death, if not previously recalled, to be delivered over to the grantee, and the grantor die without having recalled the deed, such delivery will become effectual, and the title of the grantee consummated, in the death of the grantor: Belden v. Carter, 4 Day, 66; 4 Am. Dec. 185. According to these authorities,