Walker v. Walker
42 Ill. 311
Ill.
1866
Check Treatment
Mr. Justice Lawrence

delivered the opinion of the Court:

This was a bill in chancery brought by the widow and children of Alonzo Walker, deceased, against Presley Walker and Hannah, his wife, the father and mother of said Alonzo, to compel a conveyance of a tract of land. The bill alleges, that Presley Walker and his wife, on the 15th of October, 1860, made a deed for the premises, being one hundred and sixty acres of land, to Alonzo, by way of gift or advancement, and that Alonzo, being already in possession, remained in possession until his death, in 1863, having made valuable improvements after the execution of the deed. The bill further alleges that Presley Walker retained the deed in his possession until the death of his son, having informed his son, however, at the time of the execution of the deed, that it was executed and was held by him subject to his son’s order. Presley Walker and wife answered, their oath having been waived, and admit the execution of the deed, and its voluntary destruction by Mrs. Walker, after the death of her son. They insist, however, that there was no intention of delivering the deed at the time of its execution, but that Mrs. Walker objected to the delivery, until her son would promise to remain upon the land, and that the deed was thereupon left with her to be delivered when she thought proper. A replication was filed, proof was taken, and on the hearing the court decreed a conveyance from Presley Walker, and dismissed the bill as to his wife. Presley Walker brings up the record.

It appears by the evidence of the magistrate who drew and took the acknowledgment of the deed, that, after this was done, Mrs. Walker made some objection, whereupon her husband handed the deed to her and told her to take care of it until she should be satisfied that Alonzo would stay on the place and not sell it. Alonzo was not present. After Presley Walker and the magistrate left Presley’s house, where the deed had been executed, they met Alonzo on the road, and his father said to him, “ pay the squire for making your deed. It is up at the house ready for you.” It further appears in proof, that, after this, Alonzo built a brick house upon the land, and made other improvements. His father assisted him, but the carpenter who built the house swears that he was employed by Alonzo, and his bill of $404 was paid by Alonzo, except $25 which Presley said he owed Alonzo and would pay to the carpenter. It is clear, that, from the time the deed was made until the death of Alonzo, the land was recognized by all parties interested as the land of Alonzo.

Whether the statement of Presley to his son, on the day the deed was made, that it was at his house ready for him, would of itself be considered as equivalent to a delivery, it is not necessary to decide, though, as was said by this court in Bryan v. Wash, 2 Gilm. 565, a delivery “ may be by acts without words, or by words without acts, or by both.” The case does not depend upon these words alone, but upon them taken in connection with, and construed by, the subsequent acts of the parties. And, tried by this test, we can entertain no doubt that the son understood these words of his father as meaning, a deed had been executed with all the formalities requisite to vest the title, and making him the owner of the land, and that, under the belief in such ownership, he built his house, and occupied it till his last sickness, when he was taken to his father’s house to die. His father permitted him to entertain this belief, and to act under it, expending time, labor and money, and probably entertained the same belief himself. There is no evidence whatever, that it was ever brought to the knowledge of Alonzo, that his mother had interposed any objections, or that she desired to require a promise from him, that he would remain on the place, before she would consent to the delivery. All these circumstances form a strong case of equitable estoppel. Having induced Alonzo to believe that a deed had been executed which made him .the owner, and having permitted him to act under this belief in the manner above stated, he cannot now be allowed to say, that the deed was in fact inoperative for want of a formal delivery. No formal delivery to the grantee in person was necessary. If the grantor in a deed intends, when executing it, to be understood as delivering it, that is sufficient. The intention of the party is the controlling element as said in Masterson v. Cheek, 23 Ill. 76, and in this case there can be no doubt, that both the father and the son, judged in the light of their subsequent conduct, considered the deed as having been effectually executed for the purpose of passing the title. Less strictness is required in cases of voluntary settlements, and for a reason well illustrated in this case, to wit, because the parties are supposed to place great confidence in each other. Bryan v. Wash, 2 Gilm. 568, and cases there cited. In this case, the son, no doubt, had all confidence in his father, and considered the deed as safe in his house as if in his own. If he had been advised of his mother’s misgivings, he would probably have given the required promise to remain on the land (as he really did remain there), and have received the deed.

The decree must be affirmed.

Decree affirmed.