The opinion of the court was delivered by
Valentine, J.:
1 When there is ?edrSsuS’re-° The first question for us to consider isr whether Burton has any just cause for complaining of the action of the court below. We are unable to-discover any such cause. Ko judgment was-rendered against him, although the findings of the jury, as far as they went, were against him; and: he has no ground for claiming a judgment in his favor.. He moved for a new trial and the court granted his *28motion; and why he should now come to this court •complaining, we cannot imagine.
II. The next question is, whether Shoemaker has any •cause for complaint. He claims that the court helow ought also to have granted him a new trial, first, because the special findings of the jury were not sufficient to sustain the judgment; second, because the special findings of the jury were not sustained by sufficient evidence; third, because the court erred in the instructions to the jury; fourth, because the court erred in the admission of testimony.
2. sPeow Andings — what necessary. First: Are the special findings of the jury sufficient to sustain the judgment of the court below ? We think they are. It is true that they d© not of themselves contain all the iacts necessary to sustain the Judgment; hut the essential facts not found by the jury are admitted by the pleadings. If a jury, in any case, find specially all the facts put in issue by the pleadings, their findings form, as we think, a good special verdict. (Gen. Stat., 684, § 285.) For what purpose should the jury to find facts which are not put in issue by the pleadings ? and upon what evidence would they find them ? •Gould evidence be introduced to prove facts, not in issue in the case? And if the jury should find such facts without evidence, would not their verdict be set aside because •not sustained by sufficient evidence ? Could a verdict of a jury, general or special, be anything else except a finding or a decision of the jury upon some issue or issues presented to them ? If the jury were required to reiterate what the parties had agreed upon in their pleadings it would be a misuse of language to call such reiteration a “ verdict.” It is our opinion that it is not necessary nor proper that a special verdict should contain facts ad*29mitted by the pleadings. (Barto v. Himrod, 8 N. Y., 483, 485; 7 Abbott’s Pr., 90.) In this ease both parties admitted by tbeir pleadings that Charles M. Boyd was originally the owner of the' lots in controversy; and both-parties, by their pleadings, claim to hold under him, and therefore it was not necessary for either party to go-beyond him to prove their title. (9 Iowa, 554; 16 Iowa, 10; 27 Iowa, 374; 33 Mo., 249; 2 Greenl. Ev., § 307; Tyler on Eject., 700.) The plaintiff claims that she succeeded to the rights of Charles M. Boyd by virtue of his death without issue, and she being his widow; the defendant Shoemaker claims that he succeeded to Charles M. Boyd’s rights, or rather to his right of possession, by-virtue of being the tenant of John P. Boyd, and by virtue-pf the deed alleged to have been executed by Charles M. and the plaintiff to John JR. Boyd. The issues for the jury to try were, who did succeed to the rights of Charles M. Boyd ? The jury tried these issues and found a special verdict upon them. They found that Charles M. Boyd was dead; that he died without issue; that the plaintiff." was his widow; that she never signed said deed, and that" the deed was never delivered by her husband to John E. Boyd. Hence, under the statutes of Kansas the plaintiff" became and was the absolute owner of the said lots, and was therefore entitled to the judgment that was rendered: Comp. Laws, 698, §8; (Gen. Stat., 394, §20.) No question has been raised in this court or elsewhere, whether • the jury should not have found whether said Charles M. Boyd, in his life executed a will or not. Such a finding-would have been proper; but as the burden of proving-that a will had been executed, if such was the fact, rested upon the defendant, and as he did not at any time claim nor offer to prove that such was the fact, we could not reverse the judgment for a want of such finding, even if *30the question had been specifically raised in this court. '{Gen. Stat., 655, § 140.) Although the judgment is against but one of the defendants, yet the verdict responds to both the pleas, and the findings are against both of the defendants. But if the findings did not go 'far enough ■with respect to Burton : suppose that the jury had found •the further fact, that Charles M. Boyd was the owner of the lots in fee-simple at the time of his death; then the -verdict would have been sufficient as against both of the defendants, for.all the other findings were against Burton, as well as against Shoemaker, and the judgment should •then have been against both. Under our statutes we suppose there can be no doubt, but that the court was authorized to render a judgment against one of the defendants, and leave the action to proceed against the -other. (Gen. Stat., 680, 704, §§ 268, 396.)
Second: Are the special findings of the jury sus-tained by sufficient evidence ? As the question comes to this court, we think they are. The evidence was con-flicting, but there was some evidence to sustain every finding, and there was no such preponderance of evidence against any finding as would warrant this court in reversing the judgment of the court below for that reason only: (5 Kas., 58, 82, 84, and cases there cited.)
3. Instructions; SuSns°tpiopo' Third: Bid the court err in its instructions to the jury ? The court submitted certain interrogatories to the jury, and the principal, if not the only objection to any portion of the charge urged in this court is the objection urged to that portion of the charge which instructed the jury with reference to the sixth interrogatory. We do not perceive any error in the instruction sufficient to reverse the j udgment of the court below. The instruction that “the instrument under which the defendants ffiaim title cannot be set up as a deed of gift,” was cor*31reet; and although it may have been an abstract proposition of law, without application to this case, and therefore error to give it, yet we cannot see how it misled the jury; and if it did not mislead the jury then the defendant has no reason to complain. If it is true, as stated in the brief of counsel for the defendants below, that “ the parties to the action did not set up or claim, or attempt to show from the evidence that the deed to John R. Boyd was a deed of gift,” then the instruction was unnecessary. Sometimes however the argument of counsel makes an instruction necessary that would not otherwise be necessary.
-4. Deed deíwery. The instruction that “ to constitute a delivery so as to make the paper offered in evidence by the defendants, dated 14th May, 1867, operate as a deed, Charles M. Boyd must have parted with all control over it for the purpose, and with the intent that John R. Boyd should take under it,” was the correct rule of law for this case. The counsel for defendants below ■claim that this instruction goes too far, that it is not necessary to constitute a sufficient delivery of a deed that the grantor should part with all control over it. But such is the general rule; and if there are any exceptions this case certainly does not fall within them. The grantor must have parted with all control over the deed in this ■case, or else it was not delivered at all. If the evidence of the defendants below was true, the grantor did part with all control over the deed; and if it was not true, he did not deliver the deed at all. There was no evidence •offered or given that tended to prove that he both delivered the deed, and at the same time continued to retain any control over it. But the jury must have found that the evidence of the defendants tending to show a delivery, was not true. If there was a mistake anywhere it must. *32have been with the jury, and not with the charge of the court.
5. Delivery — presumptiou 01 The instruction that “ if the deed was in the possession of Charles M. Boyd at the time of his death, the presumption is that it never was delivered; and un]ess the defendants show by a preponderance of the evidence that it was delivered to John R. Boyd, the jury must answer this interrogatory in the negativ’e,”' is not, if construed properly an erroneous statement of the law. It is true, that a construction may be put upon this instruction which would render it erroneous; but such construction, taking the whole charge together, would be a forced construction, and not the proper one to give to it. The court did not mean to say that if the deed was found in the possession of Charles M. Boyd, at the date of his death, the presumption would be, notwithstanding the other evidence, that the deed was never delivered ; but the court simply intended to say, that if the-deed was found in the possession of Charles M. Boyd, at the date of his death, the presumption would be, aside-from, or in the absence of,.other evidence, that the deed was never delivered; and this we think was a correct statement of the law. The burden of proving the delivery of a deed always rests upon the party claiming that it was delivered, and -never upon the other party. In the case at bar the burden of proving that the deed from Charles M. Boyd to his brother J ohn R. was delivered to said John R. Boyd, rested upon the defendants, and not upon the plaintiff; and it devolved upon the defendants to prove this fact by at least a preponderance of the evidence. ~We know of no exception to this rule. It is possible that in some cases a bare preponderance of the evidence is not sufficient to prove a fact; but we know of no case where less than a preponderance is sufficient. Proof that the *33deed was executed, and that it remained in the possession of the grantor, was no evidence that the deed had ever been delivered; but on the contrary, it was some evidence that the deed had not been delivered. The authorities referred to by counsel for the defendants below, have no application to this deed. Where the evidence shows that an instrument in writing was executed by both parties, and that it remained in the possession of one of the parties, the jury may, in some eases, from such evidence, find that the instrument was delivered; and where the evidence shows that an instrument was executed by one of the parties only, and that the maker of the instrument acknowledged on the face of the same, and before subscribing witnesses, that he “ signed, sealed and delivered” the same, the jury maybe allowed to find, that the instrument was delivered. But the deed in this case was executed by one of the parties, the grantor only, and there was no acknowledgment upon its face that it had ever been delivered, and therefore, aside from' other evidence, we think it would have been error to allow the jury to find that the deed was delivered.
6. Evidence-re-parties; The instruction that “ the relationship existing between Charles M. Boyd and John It. Boyd is a circumstance the jury may consider; and if Charles M. Boyd remained m possession of the property from the date of the alleged sale to his death, as before, exercising acts of ownership inconsistent with the alleged sale, it is a circumstance the jury have a right to consider, in determining whether or not there was a sale as claimed by the defendants,” was not erroneous. The court did not comment upon the facts further than it had a right to do, and it instructed the jury that they were the exclusive j udges of the facts.
*347. -nnd ability píymaybfní0 quued mto. Fourth: John R. Boyd testified that he paid $1,800 for the said lots. The plaintiff then introduced evidence to show that said John R. Boyd was a man of very limited means, and that he had not that much money or property. The defendants then introduced *• x ** the testimony of John R. Boyd, and another witneBSBj to prove that the income of John R. Boyd was probably about $500.00 per month. The plaintiff then introduced the books of the United States Assessor and Collector to prove what the amount of his income, on which he was assessed and paid taxes, was. The defendants excepted to this evidence. We think the court did not err in admitting it. It tended to prove the amount of John R. Boyd’s income, although in fact it may have been weak evidence. But if it did not show the full amount of his income, it was probably principally his own fault; and the defendants hold under him. But we think the evidence would be good evidence'anywhere as tending to prove the amount of Boyd’s income.
We do not think it necessary to notice any of the other questions attempted to be raised in this case. We have found no error in the case that affects the substantial rights of the defendants below, an.d therefore the judgment of the court below must be affirmed.
Kingman, C. J., concurring.
Brewer, J., did not sit in the case.