Johann Troutmaun conveyed the real estate in question to this plaintiff by warranty deed. The deed was deposited in the First National Bank of Chadron, and something over a year afterwards Troutmann died, and left a will by which, in a residuary clause, he devised all of his real estate to persons other than the plaintiff. The defendant, Charles Naylor, as executor of the will, appears to have come into possession of the deed to this plaintiff, and, as a controversy had arisen as to the validity of the deed, he declined to deliver it to plaintiff. She began this action in the district court for Dawes county to determine her right to the deed. The court found in her favor, and ordered the deed delivered to her. The defendant has appealed.
If the grantor reserved the absolute and unqualified right to withdraw the deed and cancel the same, the depositing of the deed for safe-keeping would not be a delivery to the grantee. This contract gave the grantor no absolute right to reclaim the deed. It was only in case the grantee “shall refuse or neglect to comply with any of the covenants on her part agreed to be performed on her part” that the grantor could take possession of the deed. The deed, then, was an escrow, and if this plaintiff performed her part of the contract she was entitled to the possession of the deed.
This seems to answer the questions raised by appellant. The judgment of the district court is
Affirmed.