215 Ill. 205 | Ill. | 1905
delivered the opinion of the court:
There can be no question, under the facts in this case, but that the deed from Emily Henry to William Henry was a voluntary conveyance and without consideration other than the love and affection the grantor had for the grantee and the desire to do something for him in recognition of his kind treatment of her. The evidence clearly shows the purpose of the purchase of the tract of land of appellee was to give the same to appellant, and all steps were taken to carry out this purpose with convenient speed after the purchase thereof. Therefore, if the deed was delivered it conveyed to the appellant so much of said premises as were correctly described therein.
The evidence shows Emily Henry purchased said thirty-acre tract with the intention of conveying the same to appellant ; that so soon as she acquired title thereto she executed a warranty deed conveying said premises to appellant; that soon after said deed was executed by her it was seen by the son and the daughter of appellant in his possession, and that almost immediately after the purchase of said premises by Emily Henry from the appellee the appellant was in possession thereof. From the proof of these facts a presumption arises that said deed was delivered to appellant, unless such presumption is rebutted by other proofs found in the record. The only facts relied upon to rebut the presumption of delivery arising from such fácts is, that prior to the death of Emily Henry the appellant took said deed, in connection with the deed from appellee to her and the abstract of title to said premises, to the bank in Shelbyville where Emily Henry did business, and requested the cashier of said bank to place said deeds and abstract in the private box of Emily Henry, where such papers were found after her death, and the testimony of Angelina Quigg, referred to in the statement preceding this opinion. It does not appear that the deed referred to by Angelina Quigg was the deed from Emily Henry to appellant; and the.deposit of the deed by appellant in the box of Mrs. Henry, if the same had before that time been delivered to him by her, would not have the effect to divest him of and re-invest her with the title to said premises. We do not think, therefore, the presumption that said deed was delivered, arising from the proofs heretofore referred to, rebutted by said facts.
While a deed must be delivered to have the effect to convey title, where the deed is a voluntary conveyance much stronger presumptions are indulged in in favor of a delivery than in cases of deeds of bargain and sale, and while such presumption is weakened where the grantee is an adult and fully competent to protect his rights, still, in view of the confidential relations which are presumed to exist between the parties in such cases, there is a presumption of delivery arising from the relation of the parties which does hot arise in the case of a deed of bargain and sale. In Chapin v. Nott, 203 Ill. 341, at page 347, it is said: “The law has a regard for the relationship of the parties and the motives that are presumed to dictate such conveyances, and the degree of confidence which the parties, standing in such relation, as donors and donees of valuable property, are presumed to have, and in such case the presumption of law is that there was a delivery, and when brought in question the burden is upon the grantor, or those claiming adversely to the donee or beneficiary, to show clearly that there was no delivery.” And in Bryan v. Wash, 2 Gilm. 557, it is said: “The burden of proof is on the grantor to show clearly that there was no delivery.”
In this case appellee made ho proof that it could be said tended to prove that the deed was not delivered, other than proof of the fact that it was found among the papers of deceased after her death. This, unexplained, in the case of a voluntary conveyance, has been held not to be sufficient to overcome the presumption of delivery, where there is no evidence to show an intention on the part.of the grantor that the deed shall not at once become effective: (Cline v. Jones, 111 Ill. 563.) In this case it clearly appears that the deed was placed where it was found, by the grantee, and that it was his act, and not that of Emily Henry, that placed the same within her apparent dominion and control. In Rodemeier v. Brown, 169 Ill. 347, it was said (p. 359) : “The law makes stronger presumptions in favor of the delivery of deeds in cases of voluntary settlements than in ordinary cases of bargain and sale. * * * In cases of voluntary settlements the mere fact that the grantor retains the deed in his possession is not conclusive against its validity if there are no other circumstances, besides the mere fact of his retaining it, to show that it was not intended to be absolute.” In the late case of Baker v. Hall, 214 Ill. 364, this question was before the court and the rule herein laid down was reaffirmed.
We are of the opinion, in view of all- the facts found in this record, that the trial court should have held that said deed was delivered'and that appellant - was the owner of the thirty acres correctly described in said deed.
As to the question raised by the cross-bill in reference to the correction of the deed in so far as it misdescribes the fif- . teen acres sought to be conveyed, we are of the opinion the court properly refused to grant the relief prayed for. As was said in the beginning of this opinion, this is clearly a voluntary conveyance. In such case a court of equity will not decree the correction of a mistake in a deed. Strayer v. Dickerson, 205 Ill. 257.
The decree will therefore be reversed in so far as it holds appellant not to have been the owner of the thirty-acre tract in controversy and decrees partition thereof between appellant and appellee, and will be affirmed to the extent that it finds appellant and appellee to be tenants in common of the tract in which the dower and homestead of Emily Henry was assigned and the fifteen-acre tract not described in her deed to appellant, and the case will be remanded to the circuit court, with directions to enter a decree in accordance with the views herein expressed.
Reversed in part and remanded.
