Spacy v. Ritter

• Decision Date: 21 February 1905
• Citation: 214 Ill. 266,73 N.E. 447
• Parties: SPACY v. RITTER et al.
• Court: Illinois Supreme Court

214 Ill. 266

73 N.E. 447

SPACY

v.RITTER et al.

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Circuit Court, Vermilion County; J. W. Craig, Judge.

Bill by Benjamin Ritter and others against John W. Spacy. From a decree for plaintiffs, defendant appeals. Affirmed.

J. H. Dyer and J. B. Mann, for appellant.

Salmans & Brown and Rearick & Meeks, for appellees.

BOGGS, J.

This was a bill in chancery, which, as amended, prayed for a decree canceling a deed of the northwest quarter and west half of the northeast quarter of section 35, town 22 north, range 11 west, alleged by the appellant to have been made to him by one Benjamin Ford, Sr., deceased, and for partition of these tracts, together with other lands of which said Benjamin Ford, Sr., died seised. A decree was entered canceling and vacating the deed held by the appellant, and making partition of the lands among the heirs of said Ford, deceased. From so much of the decree as affected the conveyance of the said tracts of land to him, the appellant has perfected this appeal, and the only question presented is as to the correctness of the decree in that respect.

The appellant was the son-in-law of the said Benjamin Ford, Sr. He received the deed purporting to convey the said lands to him from one W. Lee Bartlett, after the death of the alleged grantor. The contention of the appellant was that the grantor, a widower, during his lifetime, and on the 5th day of April, 1899, executed and acknowledged the deed and delivered it to said W. Lee Bartlett, with instructions to hold the deed as long as the grantor should live, and upon the death of the grantor to deliver the deed to the appellant. The deed recited that the consideration for the conveyance was the sum of $13,200 and ‘love and affection.’ The contention of the appellees was that the grantor did not either execute or deliver the deed, and that the grantee did not pay any part of the money consideration specified in the deed. The master in chancery, to whom this branch of the cause was referred, and before whom the witnesses appeared, found that the deed had been executed and delivered; but the chancellor sustained exceptions to the report, and found that it appeared from the evidence that the deed has neither been executed nor delivered by the grantor.

We have diligently read the evidence as preserved in the record, and also the arguments of counsel with reference to it. It was very clearly shown the appellant did not pay any portion of the sum of money mentioned in the deed as consideration for the conveyance. The testimony of the different witnesses touching the question of the making of the deed by the deceased grantor, and the delivery thereof, is in irreconcilable conflict. The record abounds in direct contradictions as to occurrences, which it is extremely difficult, if not impossible, to attribute to anything other than intentional false swearing. Proofs and counterproofs as to statements made by important witnesses out of court, directly at variance with their sworn statements on material points, also crowd the pages of the record. Fifty-six witnesses testified that the general reputation of the appellant for truthfulness and honesty was bad, while 95 witnesses testified that it was good. Eighteen witnesses testified that the general reputation of W. Lee Bartlett, the custodian of the alleged deed, was bad, and 28 testified that his reputation was good. The discussion of the evidence in detail touching the genuineness of the instrument would be fruitless of benefit to any of the parties or to the profession, in view of the conclusion which we have reached-that the finding of the chancellor that the deed, if executed by the alleged grantor, had not been delivered, should not be disturbed. It was essential to the valid delivery of the deed that the grantor should have parted with control over the instrument, and with all right to recall it or to exercise power or dominion over it. Bryan v. Wash, 2 Gilman, 557;Stinson v. Anderson, 96 Ill. 373;Wilson v. Wilson, 158 Ill. 567, 41 N. E. 1007,49 Am. St. Rep. 176;Provart v. Harris, 150 Ill. 40, 36 N. E. 958;Hawes v. Hawes, 177 Ill. 409, 53 N. E. 78; 13 Cyc. 566. The question is one of fact, only, and the finding of the chancellor thereon should not be disturbed unless a good reason for so doing is disclosed by the evidence. In McCormick v. Miller, 102 Ill. 208, 40 Am. Rep. 577, we said (page 214 of 102 Ill.): ‘The finding of the lower court ought never to be disturbed upon a mere question of fact, without some good reason for doing so is clearly apparent. If, upon a careful consideration of the whole of the testimony bearing on the question, the reviewing court has a well-founded doubt as to how the question should have been determined, without any clear conviction the one way or the other, the finding of the court below should not be disturbed.’ The evidence preserved in this record is so conflicting, unsatisfactory, and uncertain that there is no reason we should assume to overrule the conclusion and findings of the chancellor that the alleged grantor did not part with, or intend to part with, the right to recall the deed, and that there was no legal delivery thereof.

W. Lee Bartlett, who, it is the contention of the appellant, received the deed from the deceased grantor, was produced as a witness in behalf of the appellant. He testified that he was a member of the bar of the state of Indiana, and was postmaster at Ambia, in that state, and that on April 5, 1899, Benjamin Ford, Sr., executed (by his mark) and acknowledged the deed in question in his presence. As to the delivery of the deed, the witness, on his examination in chief, said: ‘I think I placed the deed on the table, and went out into the post-office part of my office. Ford brought the deed to me after that-I think the same day-at the post office. I was back of the...