Munro v. Bowles

• Citation: 58 N.E. 331,187 Ill. 346
• Parties: MUNRO v. BOWLES.
• Decision Date: 19 October 1900
• Court: Supreme Court of Illinois

187 Ill. 346

58 N.E. 331

MUNRO

v.BOWLES.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from circuit court, Rock Island county.

Ejectment by Telitha Munro against Samuel M. Bowles. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Magruder, J., dissenting.

McEniry & McEniry and Sweeney & Walker, for appellant.

W. J. Entrikin and J. T. Kenworthy, for appellee.

CARTER, J.

In an action of ejectment brought by the appellant, Telitha Munro, against the appellee, Samuel M. Bowles, in the court below, to recover a farm of 320 acres in Rock Island county, there was a verdict of not guilty, and a judgment for defendant, the appellee. On this, her appeal, the appellant contends that upon the evidence the verdict and judgment should have been for the plaintiff, and that the court erred in the instructions given to the jury. The appellant claimed title as the only heir at law of her father, Samuel Bowles, deceased. The appellee claimed title through a warranty deed from said Samuel Bowles. The evidence tended to prove that the appellee was the illegitimate son of said Samuel Bowles, who, as it was shown, recognized appellee and brought him up as his own son. He was a man of wealth, and it clearly appeared that it had long been his avowed purpose to give the farm to appellee. On June 29, 1893, he called on his attorney at Moline, Ill., and told him of his purpose to make such gift, and requested him to prepare a deed to his said son for the land. The attorney drew the deed as requested, the consideration expressed being natural love and affection and one dollar. The deed was read to, approved and signed by, Samuel Bowles, who took it away with him to a notary public, before whom it was duly acknowledged. The only question in the case is whether or not there was any effective delivery of the deed. When the deed had been prepared, and before the grantor took it from the office of his attorney, the attorney asked him if he was going to give it (the deed) to his son, to which Bowles replied, ‘Not during my lifetime.’ The attorney then said to him, ‘Do you know that if you should keep this deed in your possession, and it should be found among your papers after your death, it would be worthless?’ Bowles replied that he did not know that. His attorney then informed him that such was the law, and advised him to deliver the deed to a third person, beyond his recall, with instructions to such person to deliver it, after the grantor's death, to the grantee. We are satisfied that he undertook to carry out the instructions of his attorney, and, as found by the jury, intended to make, and did make, an effectual delivery of the deed as an escrow. He was living alone, except that he had a housekeeper. On the same day that the deed was drawn and executed, he returned home, and told his housekeeper, Miss Witherspoon, of his attorney's instructions for him to make a delivery of the deed. She testified, in substance: ‘He said he would give the deed to me to keep, and at his death that I should give it to Sam [the appellee], and I told him I would. He then handed me the deed, and I took it. It was in an envelope, with Sam's name on the back of the envelope. I asked him what I could do with it, and he told me I could keep it in his trunk, and he handed me the key. The trunk was locked. I went into his room, and put the deed in the right hand corner of the trunk, with a sewing-machine receipt which I had there. The trunk was the safest place in the house.’ A few months after the deed was made, Samuel Bowles fell unconscious while walking up the steps of his residence, and expired almost immediately after having been taken to his room. After he was dead, Miss Witherspoon, in whose hands the deed had been placed by Mr. Bowles, took from his vest pocket the key to his trunk, and then unlocked the trunk, and took therefrom the deed in question, and shortly thereafter delivered it to Samuel M. Bowles, the grantee, who filed it for record. She testified that the deed was in the envelope, in the same place in the corner of the trunk, with her machine receipt, where she had placed it when it was put into her hands for delivery to appellee.

The evidence shows beyond all doubt that from what the grantor did and said he intended to make an effectual delivery of the deed. In Hawes v. Hawes, 177 Ill. 409, 53 N. E. 78, we reiterated what had been said, in substance, in many previous cases, that ‘no special form or ceremony is necessary to constitute a sufficient delivery. It may be by acts or words, or both, but something must be said or done showing an intention that the deed shall become operative to pass the title, and that the grantor loses all right of control over it. The delivery need not necessarily be made to the grantee, but may be made to another in his behalf and for his use; but it is indispensable that the grantor shall part with control over the deed, and shall not retain a right to reclaim it.’ Hayes v. Boylan, 141 Ill. 400, 30 N. E. 1041;Provart v. Harris, 150 Ill. 40, 36 N. E. 958;Wilson v. Wilson, 158 Ill. 567, 41 N. E. 1007;...