after stating the facts, delivered the opinion of the court.
1. It is contended by plaintiff’s counsel that the testimony shows that it was the intention of the parties that the deed and bill of sale should not be delivered except in case of Jay R. Swank’s death, thus evidencing his purpose to retain control of the deed, but that the defendant, without any authority therefor, secured its possession and caused it to be recorded, thereby casting a cloud upon the title to the premises, and hence the court erred in dismissing the suit. The delivery of a deed is a prerequisite to its validity, and, while no particular formalities are essential to constitute such delivery, it is necessary that the grantor should expressly or impliedly consent that the deed should irrevocably pass from his control: Fain v. Smith, 14 Or. 82 (58 Am. Rep. 281, 12 Pac. 365); Shirley *443v. Burch, 16 Or. 83 (8 Am. St. Rep. 273, 18 Pac. 351); Allen v. Ayer, 26 Or. 589 (39 Pac. 1); Hoffmire v. Martin, 29 Or. 240 (45 Pac. 754); Payne v. Hallgarth, 33 Or. 430 (54 Pac. 162).
2. A properly executed deed, when found to be in the possession of the grantee, creates a disputable presumption that it was delivered to him, and the grantor or his privies who controvert such presumption assume the burden of showing that it was not delivered: 1 Devlin, Deeds, § 294; Flint v. Phipps, 16 Or. 437 (19 Pac. 543).
3. The testimony shows that S. M. Garland, at defendant’s request, went to the house in which Jay R. Swank was staying and took his acknowledgment and that of his wife to the deed, which he took to his office and impressed his notarial seal thereon. Garland, having been called as a witness for plaintiffs, testified in his cross-examination in relation to the deed and bill of sale as follows : “Q,. You say you took the papers and laid them away, did you? A. Yes, sir. Q. At Jay’s suggestion? A. No, sir. Nobody suggested it. Q,. Where did you put them? A. I put them in my office, in the place where I generally kept deeds. Q,. You took the papers over to your office for the purpose of putting your seal on them, now, didn’t you? A. I took them for the purpose of keeping them safe in case Jay wished to recall them. Q. Did Jay direct you to do that? A. No, sir.” On further cross-examination the witness, in answer to the question, “Did some one request you to hold these papers, and, if so, who?” said, “I don’t remember, but it seems to me something was said about that by Mr. Perry, but I won’t be sure.” The person to whom the witness referred is the plaintiff’s brother, who is undoubtedly interested in her welfare ; but, not being a party to the deed, any suggestions or directions by him to Garland respecting the instruments which the latter had in his possession *444were unavailing. While the testimony shows that Garland did not give the deed to the defendant until after Jay R. Swank’s death, we think the instrument was delivered at the time it was signed, sealed, and acknowledged, and that Garland took the deed to his office to attach his seal thereto, and not to hold it subject to the will of the grantors ; for, having been engaged by the defendant to prepare the deed and to take the grantor’s acknowledgment, he was the defendant’s agent, so that a delivery to him was in effect a delivery to his principal.
4. It is contended that the court erred in finding, in effect, that Jay R. Swank and his wife possessed sufficient mental capacity to execute the deed in question. The testimony shows that he suffered much pain from the effects of his wound, and to relieve his distress his physician frequently administered morphine, but we do not think the pain he endured or the remedy resorted to for its alleviation affected his mind to such an extent as to incapacitate him from entering into a contract; for his physician, Dr. J. A. Lamberson, admits that he told a person on the day the deed was executed that Jay R. Swank’s mind was remarkably clear for one who had been sick so long, and H. B. Ellworthy, pastor of the Methodist Episcopal Church at Lebanon, Oregon, who frequently visited and conversed with him for a week or ten days prior to his death, testified that he always thought him perfectly rational. Mrs. Swank was undoubtedly very much exhausted by her nightly vigil at her husband’s bedside, and by her daily care in nursing him and ministering to his comfort, but that she did not have sufficient mental capacity to execute the deed is not borne out by the testimony ; for in answer to the question, “ What was your condition a week or so before your husband’s death?” she said, “ I was as well as common, — as well as ever I am.” In explaining how she came to sign the *445deed, she testified : “ My husband asked me if I would not sign the papers, and I said ‘ Yes, Jay ; I will do anything to stop worrying you; ’ and I signed because I thought he might stop fretting.” It has been repeatedly held in this state that neither old age, sickness, debility of body, nor extreme distress incapacitates a party from disposing of his property, if he has possession of his mental faculties and understands the business in which he is engaged : Clark's Heirs v. Ellis, 9 Or. 128; Chrisman v. Chrisman, 16 Or. 127 (18 Pac. 6) ; Luper v. Werts, 19 Or. 122 (23 Pac. 850); Franke v. Shipley, 22 Or. 104 (29 Pac. 268); In re Cline's Will, 24 Or. 175 (41 Am. St. Rep. 851, 33 Pac. 542); Carnagie v. Diven, 31 Or. 366 (49 Pac. 831). Under the rule thus settled, we think the testimony shows that Jay R. Swank and his wife were fully competent to execute the deed, and knew the nature and effect of the business in which they were engaged.
5. It is contended by plaintiff’s counsel that the answer in effect avers, and that the evidence shows, that the deed and the bill of sale were executed to secure the defendant on account of his liability as surety for Jay Swank on the Kees note, and that, construing the deed most favorably in the defendant’s interest, the property described therein should be impressed with a lien to secure the payments he has made, and that the court erred in holding, in effect, that the deed and bill of sale were absolute. It is not alleged in the complaint, and we fail to find in the answer any averment, that the parties intended that the deed and bill of sale should be considered as mortgages to secure the payment of any sum whatever. The complaint is predicated upon the assumption that Jay R. Swank and his wife were mentally incapacitated to execute a valid contract, and that the deed was never delivered. The trial court found against the plaintiffs on both these grounds, which we think was fully war*446ranted by the testimony ; and, the answer not having alleged that the deed or bill of sale was intended as a mortgage, it is now too late to claim that such'was the intention of the parties, and the decree is affirmed.
