
    348 P.2d 930
    Harold C. FULLER, Plaintiff and Respondent, v. FIRST SECURITY BANK OF UTAH, N. A., Executor of the Estate of Fae L. Fuller, deceased, Defendant and Appellant.
    No. 9086.
    Supreme Court of Utah.
    Feb. 4, 1960.
    
      Karl V. King, Salt Lake City, for appellant.
    Gordon I. Hyde, Salt Lake City, for respondent.
   HENRIOD, Justice.

Appeal from a quiet title judgment declaring that a deed executed by plaintiff had not been delivered. Affirmed. Costs to plaintiff.

Plaintiff’s now deceased wife sought the services of an attorney with a view toward obtaining a divorce. There was a disagreement about terms of a proposed settlement, but plaintiff agreed to deed his interest in an apartment house to his wife. He executed a deed and left it with the attorney. For one reason or another;, the divorce was not consummated and a number of months later his wife died without an action having been commenced or all terms settled. At the time of her death, the deed was in the attorney’s file and had never been delivered to her.

There is substantial competent evidence reflected in the record, that, if believed by the trial court sitting without a jury, would justify the conclusion that obtaining the divorce was a condition precedent to the transfer of plaintiff’s interest, and that the divorce not being possible of execution, there was no delivery of the deed. We conclude, therefore, that the recording of the deed by her son after the wife’s death, which son had obtained after her death from the attorney, was not a valid delivery, and that the court did not err in finding that there had been no effective delivery.

As to the ruling on motion for new trial because of newly discovered evidence, we think the court did not err, such ruling being highly discretionary with the trial court, and it appearing that such court reasonably could have determined that such evidence would not likely change the result, or that the requirements of due diligence in such cases substantially had not been met.

CROCKETT, C. J., and WADE, Mc-DONOUGH and CALLISTER, JJ., concur.  