This suit was brought to cancel a deed executed by plaintiff and her husband to the defendants, for the purpose of removing a cloud upon plaintiff’s title. Plaintiff obtained judgment, from which the defendants have appealed. Since the rendition of the judgment plaintiff died, leaving a will, and the cause has been revived in the name of James L. Baker, executor. The following facts appear in the record before us, viz.: that Gfeorge Tobin, who was the husband of plaintiff, in 1845, entered eighty acres of land in Schuyler county, in his own name, and one hundred and sixty acres in the name of Ms wife. The evidence tends to show that this land was entered by Tobin with money which his father, who died in Kentucky, had willed to Tobin’s children. On the twenty-fourth of August, 1849, Tobin and wife executed a deed conveying the said two hundred and forty acres of land to their children, six in number, four of whom were minors, one of unsound mind, and another being married, and all of whom lived with their parents on the land, except the married daughter, who lived about twelve miles distant. The consideration named in the deed was five dollars, and natural love and affection. The deed was duly acknowledged before the circuit clerk, filed for record, and duly recorded. After the deed was recorded Tobin took it to his house, where it remained with his other papers till his death, which occurred in
After the execution and recording of the deed, Tobin and wife lived upon the land as before, exercising acts of ownership over it, receiving'the beneficial use of it, and paying the taxes upon it. Ellen, one’of the children, married John Haney in 1856, and Tobin and wife told him on the day of the marriage that he had made forty acres of land that day. This witness testified that after the war, by direction of Tobin and wife, he selected forty acres of the land, improved it -and lived on it till 1881, when he' left it to avoid, trouble. Trabur, who married Josephine, another daughter, joined her in conveying one-sixth interest in the land, in October, 1854, to said Tobin, and in 1856, plaintiff joined her husband in a deed re-conveying the same back to Josephine, Tobin saying to Mrs. Tobin, after the deed was made, “ that it was all fixed now; Josephine stands like all the rest of the children.” Plaintiff, who, at the time of the trial, was about eighty years old, testified that she did not execute the deed to Josephine in 1856, nor the deed to the children in 1849.
There was no actual manual delivery of the deed, acknowledged and recorded in 1849, and in consequence of the failure of the clerk to index the deed, the fact that it was recorded was unknown till about six months after the destruction of the deed by plaintiff, when it was discovered by Mr. Graves, to whom she proposed to sell the hundred and sixty acres which had been entered in her name. There was evidence tending to show that Mrs. Tobin always claimed this land, and also evidence that Tobin spoke of it repeatedly as land belonging
While the delivery of a deed is necessary to make it -effectual in passing title, it is established by the following authorities, that when a deed to a minor child is absolute in form and beneficial in effect, and the father and grantor voluntarily causes the same to be recorded, acceptance by the grantee will be presumed, and such facts constitute, prima facie, a delivery, and affords reasonable presumption that the grantor intended to part with the title, and that clear proof should be made that a person who, under such circumstances, has executed, acknowledged and caused a deed to be recorded before the court would be warranted in declaring that he did not intend to part with his title: Cecil v. Beaver, 28 Iowa,. 242; Robinson v. Gould, 26 Ia. 89; 3 Wash. Real Prop. (3 Ed.) 261; Masterson v. Cheek, 23 Ill. 72; Mitchell v. Ryan, 3 Ohio St. 377. We are of the opinion that the plaintiff has failed tn make such proof as would authorize us to declare that it was not the intention of the grantors to part with their title in the land conveyed to the defendant.
At the time the deed was made and put upon record four of the grantees were minors, one of unsound mind, and another married, living with her husband, some distance from the grantors. Although Mrs. Tobin testified that her husband gave her two hundred dollars, with which he entered the land in her name, it appears from her own evidence that the money thus bestowed upon
These facts, in connection with the further fact that Tobin accepted a conveyance in 1854 of the one-sixth interest in this land from .one of his daughters, a grantee in the deed of 1849, and in 1856, in conjunction with plaintiff, re-conveyed the land to the daughter, and the further fact which the evidence of witnesses Tobin, Morris, Bass and Haney tended to establish, that the children understood that the land was theirs, and that the father repeatedly said in the presence of plaintiff that the land belonged to the children, and the refusal of Tobin and wife to sell Trabur one forty acres of this land, and Morris another forty acres in 1866, putting their refusal on the ground that the title was in the children, the prima facie case arising from recording the deed, is so strengthened as not to be overcome by the fact that Tobip remained in possession of the deed and land, enjoying its profits, exercising acts of ownership over it till his death, in 1878.
For the reasons given the judgment will be reversed and the bill dismissed.