The main question presented to this Court is: whether or not there was an effectual delivery of the deed under which the appellee asserts title.

After careful consideration of all evidence adduced, I *Page 1005 am of the opinion that the probative force of the evidence shows no delivery by the grantor to the grantee, the appellee here, of the deed under which appellee claimed title to the land described in the 75th assignment of error.

The evidence shows that the deed in controversy was made and executed on the 6th day of March, 1912; that it was recorded on the 14th day of April, 1914, in the public records of Madison County, Florida, in Deed Book 31, page 776. That one of the grantors named in the deed, to-wit, G. Owens deposited the deed for record and afterwards retook the possession thereof, and from then until the time of his death retained possession and control of the deed.

The evidence further shows that G. Owens, the grantor, about three (3) years before his death told his housekeeper, now Mrs. Henry Burnett, that if she should be present during his last hours he wished her to deliver to W. T. Owens, (called Billie Owens,) a certain tin box with its contents, one paper of which contents was this deed, but he did not then deliver the deed to the housekeeper but retained it in his possession and control.

During his last hours, G. Owens sent for Mrs. Burnett and told her about an hour before he died that he wanted her to follow his prior request and deliver the tin box and its contents to Billie Owens, but he did not deliver the deed into her manual possession. The deed at all times during the life of G. Owens was under his domination and control.

The law appears to be well settled that the facts above stated will not constitute such a delivery of a deed as will effectually pass title by such a conveyance.

We might quote from many writers of the law, enunciations of this rule and cite numerous authorities in support thereof, but as this Court has heretofore in the case of Pratt et al v. Carns et al, 80 Fla. 243, 85 Southern 681, speaking *Page 1006 through Mr. JUSTICE WEST, used the following language:

"Delivery of a deed is essential to the passing of the title to the property intended to be conveyed to the grantee. The placing of the deed in the hands of a third person for future delivery to the grantee may constitute a delivery, but to accomplish this purpose it must be made to appear that in placing the deed in the hands of such third person the grantor intended to, and in fact did relinquish and surrender all dominion and control over such deed." It is not necessary to cite additional authorities from other states supporting this view; such authorities will be found, however, in the opinion referred to.

It appears that the deed was not delivered and that therefore title to the land described did not thereby pass to the grantee named in the deed.

Other cases in which we find this rule has been recognized are:

Loubat v. Kipss, 9 Fla. 60, Hart v. Bostwick, 14 Fla. 162, Ellis v. Clark, 39 Fla. 714, 23 So. 410.

Parken v. Safford, 48 Fla. 290, 37 So. 567, Brunner v. Hart, 59 Fla. 171, 51 So. 593.

I therefore cannot concur in the conclusions reached by my associates and must dissent from the majority opinion filed in this case.

WHITFIELD, J., concurs.