Baker v. Baker

• Decision Date: 20 January 1896
• Citation: 159 Ill. 394,42 N.E. 867
• Parties: BAKER v. BAKER et al.
• Court: Illinois Supreme Court

159 Ill. 394

42 N.E. 867

BAKER

v.BAKER et al.

Supreme Court of Illinois.

Jan. 20, 1896.

Appeal from circuit court, La Salle county; Charles Blanchard, Judge.

Bill by John Baker against James Baker and others for partition. From a judgment for defendants, plaintiff appeals. Affirmed.

R. D. McDonald and David Ross, for appellant.

O'Conor, Duncan & Haskins, for appellees.

This was a bill brought by John Baker, who claimed to be a son and heir at law of James Baker, deceased, against William Baker, Joseph Baker, Elizabeth Graham, Mary Martin, Nancy Herd, Ann Lee, Sarah King, Mary King, Cora King, and James King, to partition certain lands in La Salle county, which are described in the bill. Answers were put in to the bill, in which it was admitted that James Baker died July 16, 1892, but it is denied that he was at the time of his death seised of the lands described in the bill. The answer also denied that complainant had any interest in the lands, by descent or otherwise. Replications to the answer having been filed, a hearing was had on the pleadings and evidence, and a decree entered dismissing the bill, to reverse which the complainant appealed.

CRAIG, C. J. (after stating the facts).

James Baker originally owned the lands in question. He died, intestate, July 16, 1892. Prior to his death, on April 19, 1892, he executed five deeds,-one to Elizabeth Graham, one to James Baker, two to Joseph Baker, and one to Mary Martin,-conveying the lands in question, in different quantities, to the respective grantees. After the deeds were executed and acknowledged, the grantor placed them in an envelope, and gave them to his son Joseph, to hold until his death, and then deliver them to the respective grantees. Joseph took the deeds into his possession, placed them in his trunk, and kept them until his father died, when he delivered them over to the respective grantees, as he had been directed by his father. It is said, however, in the argument, that the facts do not establish a sufficient delivery of the deeds, and that no title passed to the grantees therein named. As has been seen, the five deeds were delivered to Joseph Baker; but, as he was the grantee in two of the deeds, the question of delivery as to these deeds rests upon a different ground from the deeds made to the other parties, and they will be considered separately. It may have been the intention of the grantor to deliver the deeds which were made to Joseph Baker to him as in escrow, to take effect upon the grantee's death; but the law is well settled that a deed cannot be delivered to the grantee himself as an escrow. In such a case, to be effectual, the deed must be delivered to a stranger; otherwise the deed becomes absolute at law. McCann v. Atherton, 106 Ill. 35, and cases there cited. See, also, 6 Am. & Eng. Enc. Law, p. 858. In Stevenson v. Crapnell, 114 Ill. 19, 28 N. E. 379, the effect of the delivery of a deed to the grantee arose, and it was held that there cannot be a delivery of a deed to the grantee in escrow. Such delivery makes the deed an absolute one to the grantee. See, also, 3 Nash, Real Prop. 267. Here the deeds were actually passed from the grantor to the grantee, and the delivery must be regarded as absolute. We now come to the deeds made to the three other parties, and placed by the grantor in the hands of Joseph Baker, to be held until the death of the grantor, and then to be passed over to the grantees. In Stone v. Duvall, 77 Ill. 476, we held that the delivery of a deed for land to a third party, to be retained until...