The plaintiff argues that the delivery was absolute and had the effect of vesting in the grantee a present title with the right of possession postponed until the grantor's death. He relies upon Shaffer v. Smith, 53 Okla. 352,156 P. 1188; Kay v. Walling, 98 Okla. 258, 225 P. 384; Maynard v. Hustead, 185 Okla. 20, 90 P.2d 30; and McCaw v. Hartman, 190 Okla. 264, 122 P.2d 999. After the deed was delivered in 1924 or 1925, Atchison continued to treat the land as his own, by terracing it in connection with an adjoining tract of land and farming the two tracts as one and by executing right-of-way grants and leases.

It is well settled in this state that the owner of land may pass title to the same by executing a deed which is delivered to a third person (not the grantee) with the intention on the part of the grantor of placing such deed "beyond recall" or beyond his own control when he delivers it to such third person. See Wright v. Anstine, 96 Okla. 162, 220 P. 928, and Kay v. Walling, 98 Okla. 258, 225 P. 384. The question in the instant case, then, is whether the deceased intended to place the deeds "beyond recall".

There is no dispute as to what the law is in Oklahoma; it is its application to the facts in a particular case which causes the trouble. A question of a similar nature has been considered in Johnson v. Craig, 37 Okla. 378, 130 P. 581; Shaffer v. Smith, 53 Okla. 352, 156 P. 1188; Wright v. Anstine, 96 Okla. 162, 220 P. 928; Kay v. Walling, 98 Okla. 258, 225 P. 384; Hall v. Dollarhide, 116 Okla. 180, 244 P. 813; Snodgrass v. Snodgrass, 107 Okla. 140, 231 P. 237, 52 A.L.R. 1213; Loosen, Adm'r, v. Stangl, 163 Okla. 231, 22 P.2d 364; Anderson v. Mauk, 179 Okla. 649, 67 P.2d 429; McCaw v. Hartman, 190 Okla. 264, 122 P.2d 999; and Maynard v. Hustead, 185 Okla. 20, 90 P.2d 30. The evidence is overwhelming that the grantor indicated at all times after he signed the deed that he intended his friend Van Hoozer to have this property.

The acts of Mrs. Dunn in thereafter leasing the land for oil and gas and in disposing of the land by will cannot have the effect of defeating the title that had previously been vested in Hartman, though the trial court should have taken in consideration, and probably did, such acts in connection with the other evidence in determining the intention with which the grantor delivered the deed. Wright v. Anstine, 96 Okla. 162, 220 P. 928; Kay v. Walling, 98 Okla. 258, 225 P. 384; Anderson v. Mauk, 179 Okla. 640, 67 P.2d 431; 52 A.L.R. 1249, annotation. After a careful consideration of the record, we are unable to say that the judgment of the court that the deed was duly executed, acknowledged, and delivered by the grantor is clearly against the weight of the evidence, which we would be compelled to do to justify a reversal of the judgment, the action being one of equitable cognizance. Maynard v. Hustead, above.

But, on the other hand, if the grantor merely intends to part with such control over the deed at his death, the instrument is merely a will, and will not be enforceable unless executed in the form and manner required of wills. Leading cases establishing this rule are Snodgrass v. Snodgrass (1924) 107 Okla. 140, 231 P. 237, 52 A. L. R. 1213, with annotation at page 1222; Loosen, Adm'r, v. Stangl (1933) 163 Okla. 231, 22 P.2d 364; Anderson v. Mauk (1937) 179 Okla. 640, 67 P.2d 429. Other cases applying the same rule, with different views as to its application to the facts presented, are Johnson v. Craig (1913) 37 Okla. 378, 130 P. 581; Shaffer v. Smith (1916) 53 Okla. 352, 156 P. 1188; Wright v. Anstine (1923) 96 Okla. 162, 220 P. 928; Kay v. Walling (1924) 98 Okla. 258, 225 P. 384; Hall v. Dollarhide (1925) 116 Okla. 180, 244 P. 813. See, also, 18 C. J. 208; 8 R. C. L. 991. The real test in determining whether the delivery of a deed to a third person is effective as a conveyance in praesenti is the grantor's intention at the time of the delivery. See Anderson v. Mauk, supra.

The court found that there was a delivery and no act of the deceased subsequent to such delivery could destroy its effect. Johnson v. Cooper, 123 Kan. 487, 255 P. 1112; Gappmayer v. Wilkenson, 53 Utah 236, 177 P. 763; Kay v. Walling, 98 Okla. 258, 225 P. 384. Section 118-110, N.M.Sts. 1929, is: "No deed, mortgage or other instrument in writing, not recorded in accordance with section 4786 (118-108), shall affect the title or rights to, in any real estate, of any purchaser, mortgagee in good faith, or judgment lien creditor, without knowledge of the existence of such unrecorded instruments."

It is the established law in this jurisdiction that when the owner of land executes a deed during his lifetime and delivers the same to a third party (who acts as a depository rather than as agent of the property owner) with instruction to deliver the deed to the grantee therein named upon his death, intending at the time of the delivery to forever part with all lawful right and power to retake or repossess the deed, or to thereafter control the same, the delivery to the third party thus made is sufficient to operate as a valid conveyance of real estate as distinguished from an abortive attempt to make a testamentary disposition thereof. See Loosen v. Stangl, 163 Okla. 231, 22 P.2d 364; Snodgrass v. Snodgrass, 107 Okla. 140, 231 P. 237, 52 A. L. R. 1213; Wright, Adm'r, v. Anstine, 96 Okla. 162, 220 P. 928; Kay v. Walling, 98 Okla. 258, 225 P. 384. The rule thus recognized in this jurisdiction is in accord with the overwhelming weight of authority in other states.

Questions of this character have been considered by this court on at least six different occasions. These cases are: Hall v. Dollarhide, 116 Okla. 180, 224 P. 813; Wright v. Anstine, 96 Okla. 162, 220 P. 928; Kay v. Walling, 98 Okla. 258, 225 P. 384; Snodgrass v. Snodgrass, 107 Okla. 140, 231 P. 237, Shaffer v. Smith, 53 Okla. 352, 156 P. 1188; Johnson v. Craig, 37 Okla. 378, 130 P. 581. While it is possible to reconcile the holdings of this court in the cases just cited, it is utterly impossible to reconcile and harmonize the language and the reasoning which appear therein. The case of Snodgrass v. Snodgrass, supra, is also recorded in 52 A. L. R. at page 1213, and is supplemented by exhaustive annotations beginning at page 1222, in which the cases dealing with the question in controversy are collected and classified. Previous enlightening discussions and annotations on the question under consideration appear in connection with selected cases in the following reports: Ann. Cas. 1915 C. 378; 54 L. R. A. 865; 4 L. R. A. (N. S.) 817; 9 L. R. A. (N. S.) 224; 38 L. R. A. (N. S.) 941. The rule announced in the Snodgrass Case, in syllabus paragraph 1 of the court, seems to be in harmony with the greater weight of authorities and with

The form of deed is authorized by the provisions of section 11753, O. S. 1931 (section 8407, C. O. S. 1921). The record shows a present intention to convey a present title subject only to the right of the grantor to a life estate in the property, together with the rents and profits therefrom, and with full charge and control thereof so long as he lives, with the provision that he is to "keep up the taxes during his lifetime." Harjo v. Willibey, 138 Okla. 212, 281 P. 265; Kay v. Walling, 98 Okla. 258, 225 P. 384; Wright v. Anstine, 96 Okla. 162, 220 P. 928, and Lowery v. Westheimer, 58 Okla. 560, 160 P. 496. Since the deed was not void, the defendant was entitled to the $600 which, under her agreement with the plaintiff, she was to receive for the execution of the mineral deed to an interest in the real estate.

ses cited by plaintiff in error are based upon the fact that plaintiffs are beneficiaries under some sort of trust or trust agreement, or under some statute, or upon the trust fund theory, which has been much discounted by McDonald v. Williams, 174 U.S. 397, and Hollins v. Brierfield Coal Iron Co., 150 U.S. 371. The disposition of the Oklahoma court may be seen on this point in Chandler v. Colcord, 1 Okla. 260, 32 P. 330; Miller, etc., v. Melone, 11 Okla. 241, 67 P. 479; Blackwell v. Hatch, 13 Okla. 169, 73 P. 933; Indian Land Trust Co. v. Owen, 63 Okla. 127, 162 P. 818; Porter v. Rott, 116 Okla. 3, 243 P. 160. Perhaps we might base out decision solely upon the failure to secure judgment under the foregoing cases, or upon the fact that there is an improper joinder of causes of action as contended for in the demurrer, under the cases of Utterback v. Meeker, 16 Wn. 185, 47 P. 428; Webber v. Dillon, 7 Okla. 568, 54 P. 894; St. L. . S. F. Ry. Co. v. Dickerson, 29 Okla. 386, 118 P. 140; Kay v. Walling, 98 Okla. 258, 225 P. 384; Dunn v. Arbuckle (Kan.) 213 P. 655. But in order to deal with this question upon its merits, we choose to base our ruling principally upon two grounds: First. That since there is no allegation of fraud or absence of consideration, neither the gasoline company nor its creditors have any interest, either direct or remote, in the property formerly belonging to the gasoline company, for, in the absence of these allegations, the property passed absolutely out of the gasoline company and vested in the oil company.