
    Jeffers v. Philo.
    Where a deed conveying real estate is executed and delivered, the destruction of the unrecorded instrument will not revest the title in the grantor; and the grantee will not be estopped to claim the land under such conveyance, unless such claim would operate as a fraud on his part. Buhes v. Spangler, ante, 119, followed.
    Error to the District Court of Wood county.
    On July 14, 1878, Asahel Philo filed a petition in the Court of Common Pleas of Wood county, against John R. Eay, and his three sisters, setting forth that he, Philo, was in possession of the premises described in the petition, and had a legal estate therein; and that the defendants claimed an estate in the premises adverse to his estate, and he asked that his title might be quieted.
    An answer and a reply were filed; and, after judgment in the court of common pleas, the cause was appealed to the district court, where the court, on hearing, at the March term, 1874, found the following to be the facts : Henry Hood, being the owner of the premises, sold and conveyed them to John Pay, who subsequently destroyed the deed, which had not been recorded; and on Deeembei 30, 1839, caused Hood, without any other consideration, to execute to Elizabeth, the wife of Fay, a deed for the same premises, which deed was recorded within six months thereafter. Elizabeth Fay, the grantee, died November 13,1846, leaving, surviving her, John R. Fay and his three sisters, her only children and heirs at law. Subsequently, John Fay married another woman, whose Christian name also was Elizabeth, and on October 17, 1853, she joined him in conveying the land in fee to Nelson Berkley, under whom Pililo claims by deed in fee, duly executed; and Philo is in possession. And thereupon the district court found the equity of the case to be with Philo, and rendered judgment in his favor accordingly.
    On leave, a petition in error was filed in this court by John R. Fay and his three sisters, to reverse the judgment of the district court.
    
      George Strain, for plaintiffs in error.
    
      Cook & Troup, for defendant in error.
   By the Court.

The deed from Henry Hood to John Fay having been duly executed and delivered, the title passed to Fay, and it was not revested in Hood by the destruction of the deed, though the instrument had not been recorded. True, the grantee may, under some circumstances, be es-topped to claim the land, if he consent to the destruction of the deed in which the title was conveyed to him; but nothing appears in this case which, as against Philo, can work an estoppel in favor of the plaintiffs in error, claiming, as they do, under their mother, who received a deed without consideration. Dukes v. Spangler, ante, 119, followed.

Judgment affirmed.  