Beck, P. J.
The pleadings in this ease are summarized in the report of Ham v. Preston, 152 Ga. 244 (109 S. E. 505), and the substance of the evidence upon a former trial is set forth in the statement of facts in the case of Preston v. Ham, 156 Ga. 223 (119 S. E. 658). The evidence on the last trial was substantially the same, except upon the question of compromise settlement. The jury returned a verdict in favor of the plaintiff, and it is recited in the bill of exceptions that this is “the third concurrent verdict in favor of the plaintiff in the case.” The defendant made a motion for a new trial, which was granted solely upon the assignment of error contained in the first special ground of the motion. To this judgment the plaintiff excepted; and the defendant assigns error upon the judgment refusing a new trial upon the grounds of the motion other than the first.
In the first ground of the amendment to the motion for a new trial exception is taken to the following charge of the court: “Mrs. Preston in her contention seeks to establish that there was a delivery of these deeds, either actual or constructive, and that this delivery of the deeds did not come into her possession until after the death of Mrs. Ham, but that they were intended by Mrs. Ham, the maker of the deeds, to be conveyed to her, and that the delivery of the deeds was not limited by the grantor, Mrs. Ham, after the death of Mrs. Ham, but that she had relinquished the possession or control and dominion over these deeds during her lifetime, and that it was intended by Mrs. Ham that she, Mrs. Preston, should go into the custody and possession of these deeds before the death of Mrs. Ham.” The defendant contends that the charge quoted was erroneous against her on a material point in the case, and prejudicial and harmful, in that it erroneously stated one of the contentions which she made, and failed to state one of the contentions which she made. It is contended also by her counsel that the defendant did not contend that it was essential to a valid delivery of the deeds that it should have been intended [685]*685by Mrs. Ham that defendant should go into possession and custody of these deeds before the death of Mrs. Ham; that on the contrary defendant’s counsel argued to the court and to the jury, and requested the court in writing to charge, that it was not necessary that the jury should believe from the evidence that it was intended by Mrs. Ham that defendant should go into the custody and possession of the deeds before the death of Mrs. Ham; the requests to charge being as follows: (a) “I charge you that if Mrs. Ham placed the deeds with Mr. Gibson with absolute, positive instructions to deliver them to Mrs. Preston if anything happened to her, and if she meant that he should deliver them when she died, and if there was no other condition to the- duty of Mr. Gibson to deliver them except upon the death of Mrs. Ham, and if Mr. Gibson was holding the deeds under the instructions of Mrs. Ham for no other purpose than to deliver them to Mrs. Preston when Mrs. Ham died, and if Mr. Gibson did send the deeds to Mrs. Preston after Mrs. Ham’s death, then I charge you that in law there was a delivery of the deeds to Mrs. Preston, and your verdict should be for the defendant.” (b) “I charge you that if while the deeds were in the possession of Mr. Gibson, and while Mrs. Ham was physically unable to actually deliver them to Mrs. Preston herself, she gave absolute, positive instructions to Mrs. Sansberg to get the deeds from Mr. Gibson and deliver them to Mrs. Preston, then I charge you that amounted in law to a delivery of the deeds to Mrs. Preston, and your verdict should be for the defendant; unless you also find that Mrs. Ham was of unsound mind. It matters not whether Mrs. Sansberg was instructed to get the deeds and deliver them to Mrs. Preston during Mrs. Ham’s life or after her death. In either case such instructions would amount to a delivery of the deeds, provided the instruction was positive, absolute, and subject to no condition other than the death of Mrs. Ham.”
The court actually gave the request last above quoted, in the language requested; and actually gave the request first above, quoted, modified only by inserting, between the words “happened to her” and the words “if she meant,” the words “and that Mrs. Ham renounced dominion over the deeds and did not reserve the. right to recall or otherwise control the deeds.” And the court, did also charge: “It is a legal delivery if it was intended by'tlie^ grantor that the deed should be delivered to the grantee during. [686]*686the lifetime of the grantor, and it would not make any difference that the grantee did not obtain physical possession of the deed until after the death of the grantor, — the deed would nevertheless be a legal deed. . . Any facts that manifest the relinquishment of control of the grantor over the deeds and establishing the intention of the grantor to constitute the dominion and control of some one for the grantee is sufficient evidence on the part of the grantee to establish delivery of the deed, so as to vest the title in the grantee.” Taking into consideration the recitals in this ground of the motion for new trial, we are of the opinion that the court did not err in giving the charge containing a statement of the contentions of the defendant, as claimed in this ground of the motion. In passing upon this motion the court delivered the following judgment and opinion: “Viewed in connection with the charge of the court on the question of the actual possession of the deeds in question coming into the hands of the grantee after the death of the grantor as effecting a legal delivery thereof by the grantor to the grantee, actual or constructive, it is obvious that the language complained of in the first amended ground of the motion for new trial, to the effect that 'it was intended by Mrs. Ham that she, Mrs. Preston, should go into the custody and possession of these deeds before the death of Mrs. Ham’ was not intended to be given by the court, but was an inadvertence; but as this language appears in the approved transcript of the charge, the principle therein stated was error and in direct conflict with the decision of the Supreme Court in this identical case, 156 Ga. 236, in which the Supreme Court held that a charge of Judge Searcy who then tried the case, containing similar language to that herein excepted to, 'was calculated to mislead and confuse the jury, and to impress upon their mindá the idea that these deeds had to reach the grantee in the lifetime of the grantor.’ Under the foregoing cited decision of the Supreme Court, it is now the law of this case that the arrangement by which these deeds were placed in the hands of the cashier of the Flovilla Bank to be kept for the grantor, and, if anything should happen to her, to deliver them to the grantee, did not amount to a delivery to the grantee during the lifetime of the grantor, and the jury was authorized to so find. Therefore the only remaining questions to be decided by the jury in this case are whether or not, after the deeds were left with the cashier of the [687]*687bank, tlie grantor directed her kinswoman, Mrs. Sansberg, to get the deeds from the cashier at once and deliver them to Mrs. Preston; and if she did so, was she at the time of giving these directions of sound mind ? The other -portions of the charge excepted to are favorable to the defendant, and therefore are unavailing as legal grounds for a new trial.
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Beck, P. J.
The pleadings in this ease are summarized in the report of Ham v. Preston, 152 Ga. 244 (109 S. E. 505), and the substance of the evidence upon a former trial is set forth in the statement of facts in the case of Preston v. Ham, 156 Ga. 223 (119 S. E. 658). The evidence on the last trial was substantially the same, except upon the question of compromise settlement. The jury returned a verdict in favor of the plaintiff, and it is recited in the bill of exceptions that this is “the third concurrent verdict in favor of the plaintiff in the case.” The defendant made a motion for a new trial, which was granted solely upon the assignment of error contained in the first special ground of the motion. To this judgment the plaintiff excepted; and the defendant assigns error upon the judgment refusing a new trial upon the grounds of the motion other than the first.
In the first ground of the amendment to the motion for a new trial exception is taken to the following charge of the court: “Mrs. Preston in her contention seeks to establish that there was a delivery of these deeds, either actual or constructive, and that this delivery of the deeds did not come into her possession until after the death of Mrs. Ham, but that they were intended by Mrs. Ham, the maker of the deeds, to be conveyed to her, and that the delivery of the deeds was not limited by the grantor, Mrs. Ham, after the death of Mrs. Ham, but that she had relinquished the possession or control and dominion over these deeds during her lifetime, and that it was intended by Mrs. Ham that she, Mrs. Preston, should go into the custody and possession of these deeds before the death of Mrs. Ham.” The defendant contends that the charge quoted was erroneous against her on a material point in the case, and prejudicial and harmful, in that it erroneously stated one of the contentions which she made, and failed to state one of the contentions which she made. It is contended also by her counsel that the defendant did not contend that it was essential to a valid delivery of the deeds that it should have been intended [685]*685by Mrs. Ham that defendant should go into possession and custody of these deeds before the death of Mrs. Ham; that on the contrary defendant’s counsel argued to the court and to the jury, and requested the court in writing to charge, that it was not necessary that the jury should believe from the evidence that it was intended by Mrs. Ham that defendant should go into the custody and possession of the deeds before the death of Mrs. Ham; the requests to charge being as follows: (a) “I charge you that if Mrs. Ham placed the deeds with Mr. Gibson with absolute, positive instructions to deliver them to Mrs. Preston if anything happened to her, and if she meant that he should deliver them when she died, and if there was no other condition to the- duty of Mr. Gibson to deliver them except upon the death of Mrs. Ham, and if Mr. Gibson was holding the deeds under the instructions of Mrs. Ham for no other purpose than to deliver them to Mrs. Preston when Mrs. Ham died, and if Mr. Gibson did send the deeds to Mrs. Preston after Mrs. Ham’s death, then I charge you that in law there was a delivery of the deeds to Mrs. Preston, and your verdict should be for the defendant.” (b) “I charge you that if while the deeds were in the possession of Mr. Gibson, and while Mrs. Ham was physically unable to actually deliver them to Mrs. Preston herself, she gave absolute, positive instructions to Mrs. Sansberg to get the deeds from Mr. Gibson and deliver them to Mrs. Preston, then I charge you that amounted in law to a delivery of the deeds to Mrs. Preston, and your verdict should be for the defendant; unless you also find that Mrs. Ham was of unsound mind. It matters not whether Mrs. Sansberg was instructed to get the deeds and deliver them to Mrs. Preston during Mrs. Ham’s life or after her death. In either case such instructions would amount to a delivery of the deeds, provided the instruction was positive, absolute, and subject to no condition other than the death of Mrs. Ham.”
The court actually gave the request last above quoted, in the language requested; and actually gave the request first above, quoted, modified only by inserting, between the words “happened to her” and the words “if she meant,” the words “and that Mrs. Ham renounced dominion over the deeds and did not reserve the. right to recall or otherwise control the deeds.” And the court, did also charge: “It is a legal delivery if it was intended by'tlie^ grantor that the deed should be delivered to the grantee during. [686]*686the lifetime of the grantor, and it would not make any difference that the grantee did not obtain physical possession of the deed until after the death of the grantor, — the deed would nevertheless be a legal deed. . . Any facts that manifest the relinquishment of control of the grantor over the deeds and establishing the intention of the grantor to constitute the dominion and control of some one for the grantee is sufficient evidence on the part of the grantee to establish delivery of the deed, so as to vest the title in the grantee.” Taking into consideration the recitals in this ground of the motion for new trial, we are of the opinion that the court did not err in giving the charge containing a statement of the contentions of the defendant, as claimed in this ground of the motion. In passing upon this motion the court delivered the following judgment and opinion: “Viewed in connection with the charge of the court on the question of the actual possession of the deeds in question coming into the hands of the grantee after the death of the grantor as effecting a legal delivery thereof by the grantor to the grantee, actual or constructive, it is obvious that the language complained of in the first amended ground of the motion for new trial, to the effect that 'it was intended by Mrs. Ham that she, Mrs. Preston, should go into the custody and possession of these deeds before the death of Mrs. Ham’ was not intended to be given by the court, but was an inadvertence; but as this language appears in the approved transcript of the charge, the principle therein stated was error and in direct conflict with the decision of the Supreme Court in this identical case, 156 Ga. 236, in which the Supreme Court held that a charge of Judge Searcy who then tried the case, containing similar language to that herein excepted to, 'was calculated to mislead and confuse the jury, and to impress upon their mindá the idea that these deeds had to reach the grantee in the lifetime of the grantor.’ Under the foregoing cited decision of the Supreme Court, it is now the law of this case that the arrangement by which these deeds were placed in the hands of the cashier of the Flovilla Bank to be kept for the grantor, and, if anything should happen to her, to deliver them to the grantee, did not amount to a delivery to the grantee during the lifetime of the grantor, and the jury was authorized to so find. Therefore the only remaining questions to be decided by the jury in this case are whether or not, after the deeds were left with the cashier of the [687]*687bank, tlie grantor directed her kinswoman, Mrs. Sansberg, to get the deeds from the cashier at once and deliver them to Mrs. Preston; and if she did so, was she at the time of giving these directions of sound mind ? The other -portions of the charge excepted to are favorable to the defendant, and therefore are unavailing as legal grounds for a new trial. ■ While it is to be regretted, in view of the number of times that this case has already been tried, that the court should have inadvertently committed the error herein acknowledged, a new trial is nevertheless demanded as a matter of law, in order that a jury may determine the remaining issues of fact involved in the ease, unincumbered by the erroneous charge. A new trial is therefore awarded unto the defendant solely on this ground and for this purpose.”
We are of the opinion that the trial court wrongly construed what was said in the second division of the opinion in Preston v. Ham, 156 Ga. 223. The language in the charge, which this court held in that ease was erroneous and “calculated to mislead and confuse the jury and to impress upon their minds the idea that these deeds had to reach the grantee in the lifetime of'the grantor,” was as follows: “that all instructions given at the hospital or at any other time with reference to the delivery of the deeds by Mrs. Ham should be construed by the jury to mean a delivery during her life, and not a delivery after her death.” In this charge the trial court construed certain instructions with reference to the delivery of the deeds; but the language contained in the court’s charge on the last trial which the trial judge himself subsequently held to be erroneous is a mere statement of the contentions of the defendant, and the language itself is quite different. That leads us, however, to consider whether or not the court erred in that portion of the charge complained of, in stating the contention of the defendant. This is the language held to be erroneous, which is to be read in connection with the other portions of the excerpt quoted: “it was intended by Mrs. Ham that she, Mrs. Preston, should go into the custody and possession of these deeds before the death of Mrs. Ham.” We are of the opinion that the court was authorized to charge this as one of the contentions of the defendant. The defendant introduced a witness, Mrs. Lucy -Sansberg, who on direct examination testified as follows: “I am related to Mrs. W. W. Preston. She is my cousin. Mrs. Emma Ham was [688]*688also my cousin. She and Mrs. Preston are my mother’s sister’s children. ' I 'was with Mrs. Ham while she was in the hospital in Atlanta. It was on Saturday morning after Cousin Emma was there that Mrs. Preston said, ‘I am not physically strong enough to go to Sister. I want you to please go.’ I went in the afternoon and stayed until Sunday evening. I was practically with her all the time I was there. I ministered to her the best I could all the time. I wet cloths and put on her head, and did things like that. Mrs. Preston did not go to Atlanta during that time. She was not physically able to make the trip. That was the reason she could not go to Atlanta. I had a conversation with Mrs.. Ham with reference to some papers. That was in the Piedmont Hospital in Atlanta. The first time she talked to me about it no one was present but us. That was on Saturday evening. She said, ‘Lucy, I know the end is near. I want you to do some things for me. You know I have deeded Bess my house and store in Elovilla. You understand why. These papers are with Mr. Gibson in the Bank of Elovilla. I want you to get them at once and deliver them to Bess, because I want her to have them in her possession.’ That was on Saturday before she died on the following Saturday. I came back from the hospital Sunday evening, the next day after she told me that. I did not do what she told me to do, because I was teaching and had the flu, and it was bad, rainy weather. Dr. Wood told me I ought not to leave the house. I didn’t understand it was necessary to take the papers right then. I had a conversation with her on Sunday about it. Mrs. Ham said, ‘Lucy, don’t forget to get the papers from Mr. Gibson and give them to- Bess right away.’ That was on Sunday evening, and I came home that same evening.”
This was all the testimony elicited from the witness by the questions of counsel for the defendant. And where counsel puts up a witness for the sole purpose of proving a fact and does by that witness prove that fact, can it be held that the court was in error in charging that the party introducing the witness. contended that the facts stated by the witness were in accordance with the truth of the case, even though counsel might have argued a different state of facts to the jury and might have proffered written requests to charge that were not absolutely in harmony with the facts which they had introduced a witness to establish? Mrs. Sansberg was [689]*689put upon the stand to show that she had a conversation with Mrs. Ham when that lady’s end was near, and she testified that Mrs. Ham said to her, “You know I have deeded Bess my house and store in Flovilla. . . These papers are with Mr. Gibson in the Bank of Flovilla. I want you to get them at once and deliver them to Bess, because I want her to have them in her possession.” And further on she testified: “I had a conversation with her on Sunday about it. Mrs. Ham said, ‘Don’t forget to get the papers from Mr. Gibson and give them to Bess right away.’ ” With this testimony of the defendant’s own witness, it seems to us that the court was authorized to charge the jury in the language employed in that part of the charge which is excepted to in the first ground of the motion. Moreover, when the defendant herself was on the stand, having been sworn as a witness in her- own behalf, and while she was being examined as such, this question was propounded to her by her counsel: “Did Mrs. Ham ever make any statement to you about having made you these .deeds to this property?” This question was objected to by plaintiff’s counsel, and thereupon defendant’s counsel made this statement to the court: “Wé-expect to prove by the witness, in response to that question and questions to follow it, that in October, 1918, Mrs. Ham told Mrs. Preston that she had. made these deeds and given them to Mr. Gibson for her, and that was done at about the time of the birthday of Mrs. Preston, and Mrs. Ham told her she had done that as a birthday present. In addition to that, we expect to prove that abotif the time that Mrs. Ham was going to the hospital the first time, that she told Mrs. Preston that she had made these deeds, that they were with Mr. Gibson for her, and she wanted Mrs. Preston to go ahd get the deeds from Mr. Gibson.” Did the court commit error in construing the proposed testimony of the defendant to the effect that the deeds were with Mr. Gibson for her, and she wanted Mrs. Preston (the defendant) to go and get the deeds from Mr. Gibson, as being tantamount to a contention that “it was intended by Mrs. Ham that she, Mrs. Preston, should go into the custody and possession of these deeds before the death of Mrs. Ham”? If contentions made by plaintiff’s counsel in argument and in written requests to charge were in conflict with contentions made elsewhere and in the evidence, then it should have been plainly stated to the court that the contentions as indicated by the [690]*690evidence introduced by the defendant were not insisted upon. Consequently we are of the opinion that the court erred in granting a new trial upon this ground.
The cross-bill of exceptions assigns error upon the refusal of the court to sustain the remaining grounds of the motion for a new trial. In the second ground of the motion the following charge of the court is excepted to: “Any facts that manifest the relinquishment of control of the grantor over the deeds and establishing the intention of the. grantor to constitute the dominion and control of some one for the grantee is sufficient evidence on the part of the grantee to establish delivery 'of the deed, so as to vest title in the grantee.” There is nothing in this portion of the charge that affords ground of exception to the defendant, the plaintiff in error in the cross-bill of exceptions.
The extended discussion of the principle ruled in the third headnote, to be found in Wellborn v. Weaver, supra, renders further discussion here unnecessary.
The rulings made in the fourth, fifth, sixth, and seventh headnotes require no elaboration. The above rulings cover all of the assignments of error insisted upon in the briefs of counsel.
Judgment reversed on the main-bill of exceptions, and affirmed on the cross-bill.
All the Justices concur, except