Oliver v. Oliver

• Decision Date: 02 April 1894
• Citation: 36 N.E. 955,149 Ill. 542
• Parties: OLIVER v. OLIVER et al.
• Court: Illinois Supreme Court

149 Ill. 542

36 N.E. 955

OLIVER

v.OLIVER et al.¹

Supreme Court of Illinois.

April 2, 1894.

Appeal from circuit court, Jefferson county; E. D. Youngblood, Judge.

Bill by Henry W. Oliver against Sarah Oliver and others. Defendants obtained a decree. Complainant appeals. Affirmed.

Albert Watson, for appellant.

Anderson & Farthing, for appellees.

CRAIG, J.

This was a bill in equity, brought by Henry W. Oliver against Sarah Oliver and others, widow and heirs at law of James Oliver, deceased, to quiet title to N. W. 1/4 of S. E. 1/4 of section 12, township 4 S., range 2 E., in Jefferson county. The complainant alleged in the bill that he acquired title about April 15, 1873, by deed duly executed by his father, James Oliver, and wife, Cinda, both now dead; that the consideration was natural love and affection, and services rendered by complainant while an adult single man living with his father; that, by parol agreement, James Oliver was to and did occupy the land until his death, which occurred November 17, 1892; that the deed was never recorded, and is lost or destroyed,-and prays that the title be adjudged to be in complainant, and for general relief. Sarah Oliver, widow of James Oliver, in her answer denies the execution and delivery of the alleged deed; claims dower in the premises, and a lien upon the same to pay the balance of the widow's award; pleads the statute of limitations, and alleges laches on the part of complainant. The minor defendants answer by guardian ad litem. The other defendants, who are heirs of James Oliver, make default. Upon the hearing on the pleadings and evidence, the court entered a decree dismissing the bill, to reverse which the complainant appealed.

James Oliver was married three times. The complainant was a son of the first marriage. He purchased the land in 1869, and resided upon it until about two years ago, when he moved to Mt. Vernon, and soon thereafter died. We think it plain, from the evidence, that in 1873 James Oliver executed a deed which purported to convey the land to Henry W. Oliver, the complainant. John Kirk testified that some time in the ‘seventies' he saw a deed from James to Henry. James then lived on the land, and Henry, a single man, lived with his father. The witness states that he was at the house of James, and Henry got the deed out of a trunk, and showed it to him. Andrew Kirk testified that in 1874 he saw the deed. His wife, who was a daughter of deceased, got the deed out of a trunk at the home of deceased, and read it to the witness. Complainant was then residing with his father. Hannah Jane Sweeten testified that the deed was made at her home, and was acknowledged before her husband, who was a justice of the peace. Francis A. Oliver, a brother of complainant, testified that, 20 years ago, James Oliver stated to him that he had deeded the land to Henry Oliver. From the foregoing evidence, the fact that James Oliver executed a deed to the complainant seems to be fairly established.

But, conceding that the deed was executed, it cannot be regarded as a valid instrument, under which the title to the land would pass, unless it was delivered to the grantee; and it is claimed that the evidence fails to show that the deed was delivered. The burden of proof rested upon the complainant to establish, not only the execution, but the delivery, of the deed. It appears from the evidence that Henry Oliver resided with his father until November 4, 1874, when he was married, and from that date he never afterwards resided with his father. When he left his father's place, he did not take the deed with him; but the deed was left with the father, where it had been from the day it was executed, and there it remained until it was destroyed by the father, or his wife, Sarah Oliver. If the deed had been delivered to the complainant when it was executed, or at any time subsequent, by the grantor,...