Bryan v. Milton H. Wash Et Ux.

• Citation: 1845 WL 3966,7 Ill. 557,2 Gilman 557
• Parties: GEORGE BRYAN et al.v.MILTON H. WASH et ux. et al.
• Decision Date: 31 December 1845
• Court: Illinois Supreme Court

2 Gilman 557

7 Ill. 557

1845 WL 3966 (Ill.)

GEORGE BRYAN et al.

v.MILTON H. WASH et ux. et al.

Supreme Court of Illinois.

December Term, 1845.

BILL IN CHANCERY, etc., in the Sangamon circuit court, filed by the plaintiffs in error against the defendants in error. The cause was heard before the Hon. Samuel H. Treat, at the March term, 1845, when the bill was dismissed.

The allegations of the bill, and the testimony in the case, so far as the same are material to its determination, are set forth in the opinion of the court.

S. W. ROBBINS, for the plaintiffs in error.

As to delivery, the court is referred to Utterback v. Binns, 1 McLean, 243; Herbert v. Herbert, Breese, 282; Jackson v. Phipps, 12 Johns. 420; Barlow v. Hinton, 1 A. K. Marsh. 97; Clark v. Gifford, 10 Wend. 311. The deed was designed not to take effect then. Jackson v. Hill, 5 Wend. 532. A deed, requiring the assent of a third person, is inoperative till it is given; Souverbye v. Arden, 1 Johns. Ch. R. 240; and if taken before the assent is given, or condition happen, non est factum may be pleaded. Wheelwright v. Wheelwright, 2 Mass. 447; depending on a future event, Church v. Gilman, 15 Wend. 658; Jackson v. Dunlap, 1 Johns. Cases, 114; Powers v. Russell, 13 Pick. 77; Mills v. Gore, 20 do. 36.

As to notice to subsequent purchasers, see Gilpin v. Davis, 2 Bibb. 420; Hinde v. Vattier, 1 McLean, 118; Robinson v. Rowan, 2 Scam. 501. Possession is notice. Barbour v. Whitlock, 4 Monroe, 196; Brown v. Anderson, 1 do. 201; Hackevith v. Damron, Ib. 237. Notice to purchasers, etc. Bates v. Norcross, 14 Pick. 224.

The intention is the pole star for construction and decision of the cases. Fonblanque's Eq. 307-8, 315, 317, 318; Wilson v. Troup, 2 Cowen, 233; Howland v. Leach, 11 Pick. 157; Church v. Gilman, 15 Wend. 660; 3 Starkie's Ev. 477; and that intention is discoverable from the facts and circumstances in the case evincing it. Foster v. Mansfield, 3 Metc. 415. As to intention and burden of proof, see 1 Greenl. Ev. § 189.

S. T. LOGAN, for the defendants in error.

A deed delivered is either delivered absolutely, or as an escrow.

It is essential to an escrow, that it be delivered to a third person, to be delivered on the happening of some event or contingency. James v. Vanderheyden, 1 Paige, 385.

A deed may be delivered by words, or acts without words, and the delivery may be made either to the grantee, or to a third person without any special authority for the use of the grantee. Verplank v. Sterry, 12 Johns. 536, 546, 551-2; Souverbye v. Arden, 1 Johns. Ch. R. 240; Taw v. Berry, Dyer, 167, b.,Cook's Adm'r v. Hendricks, 4 Monroe, 503; Inlow v. The Commonwealth, 6 do. 74.

Where there is delivery to a third person to the use of the grantee, the consent of the grantee is presumed. Church v. Gilman, 15 Wend. 663.

The question is whether the grantor has divested himself of the estate; if he has, the estate vests in the grantee. If the delivery is absolutely as his deed to a stranger for the use of the grantee, the delivery is good. But if it be delivered to a stranger, subject to the future control of the grantor, no estate passes. Ibid.

A delivery is a parting with possession by the grantor, in such manner as to deprive him of the right to recall it. Kirk v. Turner, Dev. Eq. R. 14; 1 Barb. & Har. Dig. 397, § 7.

If, at the time of execution and delivery of a deed, there were no intention to deliver, the fact ought to be clearly and explicitly proved by the grantor. Souverbye v. Arden, 1 Johns. Ch. R. 240; Barlow v. Hinton, 1 A. K. Marsh. 97.

A deed delivered to a third person to be delivered to grantee when he shall come to town, the deed is good, if delivered before he comes to town; so, if grantor die before he comes to town, it will be good; which could not be if it were not grantor's deed before death. Cook's Adm'r v. Hendricks, 4 Monroe, 503.

A. LINCOLN, in continuation for the defendants in error, cited Morrow v. Alexander, 2 Iredell's Law R. 388, 391; Currie v. Donald, 2 Wash. Va. R. 74; Snider v. Lackenour, 2 Iredell's Eq. R. 360; Lessee of Lloyd v. Giddings, 6 and 7 Ohio, 418-21.

ROBBINS concluded the argument for the plaintiffs in error.

CATON, J.^a1

This bill was filed in the name of George Bryan, Sr., by his agent, N. Bryan, to have a deed which was signed and acknowledged by complainant conveying land to Mary Jane Bryan, which is charged never to have been delivered, but wrongfully and fraudulently obtained by Wash, who had intermarried with Mary Jane Bryan,--restored to the safe keeping and possession of N. Bryan, with whom it had been deposited, and the record of said deed be made void and have no legal effect; and that said deed may abide said N. Bryan's discretion in the delivery, or remain with him till his improvements are paid for, which have been made under a lease dated 10th December, 1833, to N. Bryan, by his father, the complainant. Then follows a copy of the said lease and the indorsement of record, 25th February, 1842, and a copy of the deed from George Bryan, Sr., to Mary Jane Bryan, dated 28th September, 1837, and recorded 5th November, 1840. Then follows a mortgage, dated 10th day of November, 1841, from Milton H. Wash and wife to S. M. Tinsley, E. D. Taylor and Wm. Cowgill, to secure the payment of $1200, and acknowledged and recorded 12th November, 1841, all of the same premises.

Amended bill filed to make Nicholas Bryan defendant. The answer of Wash refers to the deed made to his wife, and charges that it was, as he is informed, delivered to N. Bryan, the father of said wife, for her use and benefit, and to be recorded by him; states that he was married to said Mary Jane Bryan in July, A. D. 1840, and is now her lawful husband; that in October, 1840, Mary D. Bryan requested Wash to call and see recorder of Sangamon, and see if said deed was recorded, and said she had handed this deed to James Taylor to be recorded, which he found was not then done; but a few days after, at the second request of Mrs. Mary Bryan, he called on said recorder, and found that it was recorded. Said Wash denies that he in any way, directly or indirectly, influenced his mother-in-law to have said deed recorded.

Defendant admits the mortgage to Tinsley, etc., for the consideration aforesaid, and says he owed them about $218, and N. Bryan owed them $340.44, and the balance to be paid in goods on his orders, a large part of which is paid; and that they refused to accommodate him, unless he would secure the above sum due them, from N. Bryan.

Denies the execution of said lease aforesaid, at any time; and if executed, that it was not executed before the deed to said Mary Jane; and charges that said suit was brought by N. Bryan without authority.

The joint and several answer of Tinsley, Taylor and Cowgill, charges that Geo. Bryan, Sr., made and executed in 1837, a deed to Mary Jane Bryan, now Mary Jane Wash, for the most of the land contained in the mortgage, and that one of them examined the record and found all regular. They deny that a deed was placed in the hands of N. Bryan for safe keeping, to be delivered at his discretion, and charge that said deed was unconditionally delivered to said N. Bryan, and they charge that the delivery to said N. Bryan, was, under the circumstances, a perfect delivery to the grantee, and that she had a legal right to it, and no person had a right to withhold it from her and her husband. They believe that Wash used no improper means to obtain the possession of said deed. They set up their mortgage as good and valid of date aforesaid, and said consideration, $1200, secured by five promissory notes of $240 each, payable at the end of five years.

They aver they had no notice of any defect in the title of Wash and wife, and allege they are bona fide purchasers for a valuable consideration without notice of any adverse claim. They admit they knew N. Bryan lived on the land, but did not know how he claimed it. They charge that this bill was filed by N. Bryan without the knowledge of complainant. They charge the lease dated 10th December, 1833, is fraudulent. They deny the lease was ever executed by George Bryan, Sr., or if so executed, has been antedated so as to overreach the deed to Mary Jane Bryan. They charge that said lease never was acknowledged before any officer, or recorded till after their mortgage.

The answer of Nicholas Bryan admits all the statements in the bill. There is a long special replication filed by the complainant, which contains statements of fact and law, and an argument in the cause which is sworn to by the complainant, but as special replications are not proper under our practice at most, it can only be considered as a general replication; hence, it is unnecessary to refer to its contents.

The bill was afterwards amended by making Mary Jane Wash, the grantee in the deed sought to be avoided, a defendant, and Robert Bryan, an infant, alleged to be a subsequent grantee of the same premises from George Bryan, a complainant, who appeared by his next friend, Nicholas Bryan. I will here remark that there is no proof of this last conveyance, so that there will be no necessity of attending to that branch of the case again, although I am unable to see how it could affect the ultimate determination of the case. For the complainant, Eliza C. Taylor, proves that she knew of said deeds about the time they were made, and often heard her grandfather, G. Bryan, and father, N. Bryan, about that time and since, say that said deeds were put into N. Bryan's possession to be delivered by him at his pleasure. Witness says she was present when her mother, Mary D. Bryan, handed the deeds to James Taylor, her husband, for record; and she then said, that if what Mr. Wash had said was true, she thought the deeds should be recorded. She spoke of the bank mortgage, and summons that had been served on her, and seemed reluctant to have it done; and that she was mainly influenced in doing so by the urgent...