| Ill. | Jan 17, 1896
delivered the opinion of the court:
The question presented on this record is whether there was a delivery of the deed by the grantor therein. A delivery of a deed will be presumed from slight circumstances, where there is proof of an intention on the' part of the grantor to convey to the grantee. (Brinkerhoff v. Lawrence, 2 Sandf. Ch. 400.) In cases of voluntary settlements the legal presumption in favor of delivery of deeds is greater than in ordinary cases of bargain and sale. (Bryan v. Wash, 2 Gilm. 557; Rivard v. Walker, 39 Ill. 413" date_filed="1866-01-15" court="Ill." case_name="Rivard v. Walker">39 Ill. 413; Douglas v. West, 140 id. 455; Haenni v. Bleisch, 146 id. 262.) A deed may be delivered to a third person for the benefit of a grantee, and if accepted by the beneficiary the delivery is as good as though made directly to him, and as effective in conveying title, where no future control of the deed is reserved to the grantor. (Stinson v. Anderson, 96 Ill. 373" date_filed="1880-10-02" court="Ill." case_name="Stinson v. Anderson">96 Ill. 373.) The mere fact that it is for the benefit of such grantee will in some cases raise the presumption of acceptance. Rivard v. Walker, supra.
In Bryan v. Wash, supra, it was held that a delivery is essential to the validity of every deed, and the court said (p. 565): “Anything which clearly manifests the intention of the grantor, and the person to whom it is delivered, that the deed shall presently become operative and effectual, that the grantor loses all control over it, and that by it the grantee is to become possessed of the estate, constitutes a sufficient delivery. The very essence of the delivery is the intention of the party.” This is followed by many cases in this State. We cite Stinson v. Anderson, supra; Winterbottom v. Pattison, 152 Ill. 334" date_filed="1894-10-29" court="Ill." case_name="Winterbottom v. Pattison">152 Ill. 334; Gunnell v. Cockerill, 84 id. 319; Bovee v. Hinde, 135 id. 137; Cline v. Jones, 111 id. 563; Oliver v. Oliver, 149 id. 542.
In this record it is shown by the grantor’s declaration made in his will—which afterward became invalid by his marriage—that he was under obligations to appellants because of their remaining with him and aiding him to pay for this land, because of which he desired to convey it to them. This declaration was substantially repeated on different occasions thereafter. Contemplating a remarriage, and perhaps aware of the fact that such marriage would invalidate the will, he determined to convey the land by deed. That was the manifest intention. With that object in view he executed and acknowledged the deed and placed it in the hands of a third party, with the declaration that he never wished to see it again, and on his death it was to be delivered and recorded. The grantees were then in the possession of the land with the grantor, knew before his death of the execution of the deed, accepted it and cultivated the land. The deed was in the nature of a voluntary settlement in favor of these sons. Every element necessary to constitute a delivery is shown, and as strongly as it can be shown. The intention of the grantor is evinced and must prevail.
We hold the evidence sufficiently shows a delivery of the deed, and the decree of the circuit court setting aside that deed and ordering partition of the lands. described was error. The decree is reversed and the cause remanded. Reversed and remanded.