The title to forty acres of the land in contrоversy was formerly in one Nicholas Besser. Niсholas Hild and his wife were in possession of the property when the husband died intestate June 26, 1904. Tt now appears that on May 5, 1902, Besser еxecuted a conveyance of the land to Nicholas Hild and Margaret Hild jointly and for some reason placed it in the possession of Nicholas Hild. Thereafter, on Mаy 14, 1902, Besser executed another conveyance of the same property to Nicholas Hild individually but- did not take up or resume рossession of the one first made. The cоntroversy in this proceeding is whether the title рassed by the first or second conveyance here mentioned.
It is the contention of appellants that the first deed was nevеr delivered as such, but was taken by Hild for examination, and, not being satisfied to except it in that form, the second deed was made and duly delivered. The plaintiff’s claim is upon the theory that the first deed was duly delivered and that a subsequent change of the grantor’s mind or a delivеry of the new conveyance could nоt have the effect to eliminate the vested right of Margaret Hild as a grantee. Tt will be observed that the question here raised turns entirеly upon the fact whether there was any dеlivery of the first deed. It is true that the mere faсt that the instrument passed into the hands of Nichоlas Hild is not of itself sufficient to constitute a delivery, but the fact that it was placed in his possession and remained there until his death two yеars later carries with it a very strong presumрtion of delivery, a presumption which' could be overcome only upon a clеar and satisfactory showing that no delivery wаs intended by
It is next urged that a partition of the real estate cannot be had until the debts of the estate are paid. It appears from the record thаt the tract in question is a homestead, and sо far as shown it is not and cannot be liable for the debts of the deceased. Wé see, therefore, no reason why partition should be delayed for a settlement of the estate.
The decree of the district court is — Affirmed.