158 Ill. 567 | Ill. | 1895
delivered the opinion of the court:
William Wilson and others filed their bill, and after-wards their amended bill, against Samuel Wilson and others, to set aside a deed to and for partition of certain lands described in the bill, derived from a common ancestor, Samuel Wilson, who is referred to in the record as “Col. Wilson.” The bill named one O. P. Piper, also, as a party defendant. The defendants answered, Piper filing a separate answer, claiming liens on the land in controversy represented by two different mortgages. He also filed his cross-bill praying foreclosure of the same. Upon a hearing had before the chancellor, upon the amended and cross-bills, answers, replications, exhibits and proofs, a decree was entered dismissing the complain-ants’ bill and amendment thereto for want of equity, and ordering foreclosure of the mortgages in accordance with the prayer of the cross-bill. To reverse that decree the complainants prosecute this appeal.
No question is made of the justice of that part of the decree foreclosing the mortgages held by O. F. Piper. The complaint is that the court below erred in nofcdecreeing partition of the lands in controversy in accordance with the prayer of the original and amended bills, and the “bone of contention” is a deed made by Col. Wilson purporting to convey said lands to three of his children, Lizzie Bison, Ed and Samuel Wilson, defendants herein, and claimed by them to have been delivered. Complainants deny that the deed was ever delivered, and upon the question of delivery rests the decision of this case.
The undisputed facts in the case are, that on September 2, 1889, Col. Wilson was the owner of a large farm situated in McDonough county; that on said day he made and acknowledged a deed, purporting to be an absolute and unconditional conveyance of said land, to the defendants Lizzie, Ed and Samuel, and shortly thereafter handed the same to said Lizzie, in whose possession it has remained ever since; that said deed was never recorded until the day following the death of the grantor, who died intestate November 30, 1893, and left surviving him the complainants, and the defendants Lizzie, Ed and Samuel, his only heirs-at-law.
At the hearing a large number of witnesses were examined, most of whom were put upon the stand for the purpose of disproving, on the one side, and on the other Of establishing, the fact of delivery of the deed in controversy. Lizzie Elson and Samuel Wilson were permitted to testify, over the objection of complainants. This was error. Complainants sue as the heirs of their deceased father, whose title is here disputed, and the defendants, seeking to disprove such title, were therefore not competent witnesses. Hayes v. Boylan, 141 Ill. 400; Comer v. Comer, 119 id. 170.
Disregarding such of the testimony as was incompetent, a clear preponderance of the evidence shows that Col. Wilson always treated the land in question as his own, as well subsequently as prior to the alleged delivery of the said deed. The land remained on record as his until after his death, up to which time he paid the taxes thereon with his own money. At different times subsequent to said alleged delivery he made repairs on the premises, leased the land to tenants, collected the rents for his own use, advertised the land for sale in a public newspaper, and on March 1, 1890, made and delivered to O. F. Piper a mortgage deed thereon to secure a loan of §500. All of those acts were done with the knowledge and acquiescence of the defendants. The evidence further shows that one of said leases was drawn up by defendant Samuel Wilson, and signed by him as agent for his father, who was named therein as owner and lessor. The defendants always spoke of the land as their father’s, and so treated it. In a replevin suit wherein Col. Wilson was plaintiff, tried in September, 1891, Samuel Wilson swore that this land belonged to his father, and that he and his brother Ed were their father’s tenants. There also appears in evidence the following letter written by defendant Lizzie Bison, and mailed by her to complainant Alice M. Tuck:
“Peoria, III. , Feb. 28,1894.
“Dear Alice—Your letter was received to-day noon. * * * I have had that deed in my possession for some time. Father gave it to me, and told me to keep it, and .if he never called for it, which he never did, that at his death-1 must have it put on record. He saw the deed shortly before he went down to Jim’s. He was well then, and it was still his desire that I should keep the deed. It is not likely he would change his mind in so short a time. * * "
Lizzie.”
Such a state of facts is not at all consistent with the claim that Col. Wilson delivered this deed to the defend-' ants. The mere placing of the deed in the hands of one of the grantees did not, of itself, necessarily constitute a delivery. In such a case the inquiry is, what was the intention of the parties at the time?—and that intention, when ascertained, must govern. (Jordan v. Davis, 108 Ill. 336; Bovee v. Hinde, 135 id. 137; Oliver v. Oliver, 149 id. 542.) It seems clear that this deed was placed by her father in the hands of Lizzie Bison with the mutual understanding that if he, at any time, desired to withdraw it she should return it to him, but that “if" he never called for it” she should, at his death, have it recorded. In other words, there was no intention, at the time, to convey a present absolute title to the defendants, but the intention was that the deed should take effect at the grantor’s death and vest the title in the defendants, provided he died without having recalled the deed. This was in no sense an attempt to deliver to the grantees in escrow, as contended by counsel for the defendants, but was merely a transfer of the possession of the deed to one of the grantees, the grantor at the time, however, reserving a future control over it. To constitute delivery of a deed it must clearly appear that it was the intention of the grantor that the deed should pass the title at the time, and that he should lose all control over it. A deed for an interest in land must take effect upon its execution and delivery, or not at all. Bovee v. Hinde, supra; Cline v. Jones, 111 Ill. 563; Stinson v. Anderson, 96 id. 373.
We think the mortgaging of the land by Col. Wilson subsequently to his placing the deed in the custody of Lizzie Bison, his offering the land for sale, and exercising the other acts of ownership over it heretofore mentioned, were sufficient to constitute a withdrawal of the deed. (Stinson v. Anderson, supra.) But even if they were not, the deed is nevertheless void, for it was not to take effect until the death of the grantor. That was an attempt to make a testamentary disposition of "property without complying with the Statute of Wills. Cline v. Jones, supra.
The circuit court erred in dismissing the complainants’ original and amended bills. The decree is therefore reversed, and the cause remanded to that court with directions to enter a decree in accordance with the prayer of said bills.
Reversed, and remanded.