| Ill. | Jun 19, 1902
delivered the opinion of the court:
First—Appellant produced upon the trial no deed executed to her by her uncle, Silas W. Powell. If such a deed was executed, the testimony does not show clearly what became of it. Certainly, there never was any formal delivery of it to the appellant. The first question, which arises in the case, is whether there was a legal delivery of the deed to the appellant. In order that a deed may be operative as an effectual transfer of title to land, there must be a delivery of it. “Delivery is the final act on the part of the grantor, by which he consummates the purpose of his conveyance, and without it all other formalities, which have preceded, are impotent to render it effectual as an instrument of title." (Provart v. Harris, 150 Ill. 40" date_filed="1894-04-02" court="Ill." case_name="Provart v. Harris">150 Ill. 40). In other words, to constitute a good delivery of a deed, the grantor must divest himself of all power and dominion over it. In Provart v. Harris, supra, we said (p. 47): “While it may not be essential, in all cases, that the deed should be delivered into the actual possession of the grantee, (Gunnell v. Cockerill, 79 Ill. 79" date_filed="1875-09-15" court="Ill." case_name="Gunnell v. Cockerill">79 Ill. 79,) it is indispensable, whatever means may be adopted to accomplish its delivery, that the deed pass beyond the dominion and control of the grantor, for, otherwise, it cannot be correctly said to come within the power and control of the grantee. Their interests are diametrically opposed. Both cannot, consistently with its objects, have control of the deed at the same time, and until the grantor parts with all control over it, that of the grantee does not attach.”
Where the grantor in a deed hands it to a party acting as his agent, to be delivered to the grantee, the possession of the agent is, in law, the possession of the grantor.
In Barrows v. Barrows, 138 Ill. 649" date_filed="1891-11-02" court="Ill." case_name="Barrows v. Barrows">138 Ill. 649, where a person, in anticipation of his marriag'e, executed and acknowledged a deed for a house and lot to his intended wife, and handed the" same to his attorney, with instructions to deliver it to the grantee as soon as the marriage was solemnized, and, two days after the marriage, the attorney returned the deed to the grantor, we said (p. 654): “The act of the grantor in banding the deed to his attorney, or in leaving it with him, with instructions to deliver it to the complainant as soon as the marriage was solemnized, was not a parting with the instrument with the intention of relinquishing all dominion over it, but merely putting it into the hands of an agent, whose possession, so long as it continued, was the possession of the principal. Until the agent, thus charged with the duty of making delivery, actually delivered the deed, the instrument was no more operative than it would have been, if it had remained in the personal custody of the grantor.”
If the rules above announced be applied to the facts of the present case, it is quite clear that there was no delivery of the deed, although it may have been the intention of Silas W. Powell, deceased, to give the property in question to his niece, the appellant. If he had executed a deed to her, and that deed was present when the interview took place between himself and Strottner, he never, parted with his control over it, or, if he did so for a few minutes, his control over it was resumed. He handed the deed, together with some notes, to Strottner to be enclosed by mail to his niece who was absent. Strottner wrote a note to the appellant, and enclosed the notes given to her, but said that the envelope was too small to hold the deed. He thereupon left the deed upon the table, or dresser, where he had been writing, or handed it back to Powell, and then left and never saw it afterwards. It is clear that the deed never left the possession or control of Powell. In this matter, Strottner was merely the agent of Powell to make a delivery of the deed. Whatever possession and control Strottner had of the deed was the possession and control of Powell, his principal. It cannot be said that he was the agent of appellant, the grantee, to receive and accept the deed, as well as the agent of Powell, the grantor, to deliver the deed. As has been stated in the quotation above made, the interests of Powell and of appellant, being those of grantor and grantee, were diametrically opposed, and Strottner could no more be the agent of both parties than could an agent of the seller of property be the agent of the purchaser in the same transaction. (Story on Agency,—9th ed.—sec. 211).
Second—-In order to render a deed operative to pass title it is not only necessary that there should be a delivery of the deed by the grantor, but also that there should be an acceptance thereof by the grantee. There is no evidence in this record of any acceptance of this deed, if there was a deed, by the appellant.
In Moore v. Flynn, 135 Ill. 74" date_filed="1890-11-05" court="Ill." case_name="Moore v. Flynn">135 Ill. 74, we said (p. 79): “The acceptance of the conveyance by the grantee is as essential as the delivery by the grantor, and where the acceptance is not proven, and the facts do not justify the presumption of law, that the grantee has accepted, the title does not pass. (5 Am. & Eng. Ency. of Law, p. 446, and cases cited; Wiggins v. Lusk, 12 Ill. 132" date_filed="1850-12-15" court="Ill." case_name="Wiggins v. Lusk">12 Ill. 132; Kingsbury v. Burnside, 58 id. 310; Dale v. Lincoln, 62 id. 22). In respect to a grantee, who is not under legal disability, the rule is, that, when such grantee is aware of the conveyance, and does not dissent, and the conveyance is positively beneficial to him or her, acceptance will be presumed, but that no such presumption will arise, so long as the grantee is ignorant of the conveyance.”
In the case at bar, Mrs. Dagley, the appellant, was under no legal disability. She was not aware, so far as the record shows, of the existence of any deed from her uncle to herself until after his death. As she was ignorant of the existence of any such conveyance, if it did exist, no presumption of acceptance on her part arises, although the deed was beneficial to her. She states in her testimony that the letter, in which her uncle enclosed the notes to her, was lost or destroyed, and she was unable to say what the contents of the letter were. She says that in it were “just a few words, and two notes.” It does not appear that anything was said in the letter about the deed. This deed was never seen after the death of Powell, and was never in the possession of appellant, or of any other person, so far as known. One witness testifies that, under the instructions of Powell, he one day threw a deed into the fire, and the same was burned up. The witness, however, was unable to say what deed this was. The evidence does not show whether it was the deed executed to Ora Gillam, or the deed, alleged to have been executed to appellant.
Third—There is really no competent evidence in the record of the execution of a deed to the appellant. The witness, Strottner, states that Mr. Powell handed him a deed to be sent by mail to his niece, but Strottner does not state that he opened the paper handed to him and called a deed by Powell, or that he read the deed, or knew anything about its contents, except that Powell called it a deed. There is some evidence, tending to show that the deed was drawn and acknowledged before a notary or justice by the name of Carroll, but Carroll had been dead some two years before the trial of this case. The only evidence, that Carroll did draw the deed, and take the acknowledgment of it, is the statement of one witness, that he saw Carroll go to Powell’s house at one time, and saw him come away from the house, and that Carroll stated that he had taken the acknowledgment of a deed. But there is really no evidence in the record of the loss of the deed, or of the inability of the appellant to produce it, nor is there any evidence by any witness, who ever saw the deed, as to what its contents were. When parol proof of the existence and contents of a lost deed is offered as the only evidence thereof, the witness must have seen and read it, and be able to speak pointedly and clearly as to its tenor and contents, and to state whether it conveys a fee simple, a life estate, or a term for years, and whether it in fact was executed by the supposed grantor. (Rankin v. Crow, 19 Ill. 626" date_filed="1858-04-15" court="Ill." case_name="Rankin v. Crow">19 Ill. 626). No such testimony as is thus required was introduced in this case.
We are of the opinion that the judgment of the circuit court is correct. Accordingly, that judgment is affirmed.
Judgment affirmed.