23 Ill. 72 | Ill. | 1859
The court in this case, before whom the issue was tried, did not err in finding it for the defendants, if they succeeded in showing an outstanding title in another party, though they were not connected with the title of that party in any manner. And this, on the well known principle, that a plaintiff in ejectment must recover on the strength of his own title, without regard to the weakness of his adversary’s. A legal, subsisting title, outstanding in another in the land claimed, is inconsistent with title in the plaintiff, and must defeat him. Hulick v. Scoville, 4 Gilm. 159.
Was such outstanding title shown ? It certainly was, if an infant can be made a grantee in a deed of land, and that he can, no matter what his age may be, no one will dispute or deny. The infant grantee, in this case, was the illegitimate son of the grantor, of tender years, and living with his mother, and the conveyance was voluntary and intended for his benefit, the grantor doing all he could do to make it available for such purpose. He executed it and caused it to be recorded, and so far as these facts go, the grantee is entitled to the benefit of them.
| But it is insisted that these facts do not constitute a delivery I and acceptance of the deed by the grantee, nor by any person | authorized to accept. As a general principle, both delivery and I acceptance are essential to the validity of all deeds conveying I land, but the principle is to be understood with some qualifica1 | tion, as in the case of infants or lunatics, either of whom may be grantees, but neither of whom can signify an acceptance.
In no case, whether the grantees be infants or adults, is a formal delivery and acceptance essential, though there must be acts shown evincing such intentions. The intention of the party is the controlling element in contracts of this character, and wherever it is manifest, by facts and circumstances, that the grantor in delivering a deed to the recorder to be placed on record without any explanation, intended to part with his title, the presumption is, and should be, that he then delivers it for the benefit of the grantee, and it should and will take effect from that moment, an acceptance by the grantee being presumed from the beneficial nature of the transaction. How useless would be a delivery to, and how impossible an acceptance by, an infant one day old, or a lunatic.
In such cases, courts are bound to hold the conveyance beneficial to such persons, and this, although the grantee had not authorized and could not authorize the recorder or other person to receive it, and was at the time, wholly ignorant of its execution. The great question is, did the grantor, by the execution of the deed and placing it on record, intend thereby to part with his title absolutely and vest it in another, without any intention to resume it, or expectation of deriving a benefit from an interest still remaining in him in the land ? The court, sitting as a jury, has found in the affirmative, and, we think, upon ample testimony—an acceptance, therefore, must be presumed. The intention must control.
If in other cases, and those are cases cited by the appellant’s counsel, it appears from the attending circumstances that the grantor had the intention still to remain the owner of the land, and there lingered in his breast a hope of enjoying the benefit of it, as where he conveys to a party to keep it from creditors or "for other sinister purposes, a more formal acceptance must be shown. In all cases of this kind, the real secret intent of the grantor must be looked to, and ascertained from the circum stances.
All the cases cited on both sides are reconcilable on this consideration—that the intention is, and must be, the controlling element.
In a case like this, where the conveyance was voluntary, and to an infant who died before he reached an age to assent or accept the conveyance, a delivery and acceptance will be more readily presumed, than in the cases to which reference is made by the appellant’s counsel.
The principle being admitted that an infant of tender years can take by deed, not having, at the same time, discretion to accept or refuse, and dying before that period arrives, and the grantor having performed every act he could perform to pass the title to the infant, and it being for his benefit, it is fair to presume he assented to it. The grantor in this case, must be regarded, as to his subsequent possession of the deed, as the mere custodian or trustee for his son. The facts were fully before the court to find the intention of the grantor, and we think it was well found, that he intended his son should own this land, reserving no future enjoyment of it to himself. It was an absolute divestiture of title, which the grantor could not again resume.
The law presumes much more in favor of the delivery of deeds in the case of voluntary settlements, especially when made to infants, than it does between parties of full age, in ordinary cases of bargain and sale.
We do not deem it necessary to comment on the many cases referred to by counsel in this case, as they have all been examined by this court in the case of Briján et al. v. Wash et al., 2 Gilman, 557, which case is full to the point in controversy.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.
