Byars v. Spencer

• Decision Date: 18 January 1882
• Citation: 40 Am.Rep. 212,1882 WL 10179,101 Ill. 429
• Parties: LOGAN BYARS et al.v.MARY E. SPENCER et al.
• Court: Illinois Supreme Court

101 Ill. 429

1882 WL 10179 (Ill.)

40 Am.Rep. 212

LOGAN BYARS et al.

v.MARY E. SPENCER et al.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Jackson county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

Messrs. BARR & LEMMA, and Mr. G. W. SMITH, for the plaintiffs in error.

Mr. ANDREW D. DUFF, for the defendants in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that one Thomas Whitson, of Jackson county, in this State, was, in his lifetime, the owner of one hundred and seventy-four acres of land, situated in that county; that the land was improved, and he resided on the same many years before his death. He was twice married, and was the father of eleven children, nine by the first and two by the latter wife. He survived both, and the children by the first wife, being grown, had left him, and he remained on the farm with complainants, the two children by the latter wife. They were minors, the one eight and the other ten years of age. He made, executed and acknowledged a deed conveying this land to them. The deed was made in July, 1864, but was never delivered to the grantees, or to any person for them, nor was it recorded, nor did it ever pass out of the possession of the grantor or from under his control. At the time he made it he took it, after acknowledging it, to his house, and placed it in a drawer of a bureau with other papers, where it remained till the time of his death. He went to Worthen, a justice of the peace of Jackson county, and said to him he wished to convey these lands to his two minor daughters. He said to Worthen: “You know that I have given to my children by a former wife, that are grown and have left me, a good farm. These little ones have yet to be raised. I think it nothing but right that they should be provided for, making it equal with the others.” The deed was made and acknowledged at the time this conversation occurred.

Subsequently, Worthen, in a conversation with Whitson, suggested to him that he should have the deed delivered and recorded. Whitson replied, that he, being the natural guardian,--the father of the children,--was the proper person to hold it; and with regard to recording it, he had an objection to its being recorded at that time, because if he could sell the land for $6000 he would divide the proceeds between the two children, but if the deed was on record he could not sell it, because of the deed being recorded; nor could the girls sell it, because they were minors. If the deed remained, then, unrecorded at his death, it would show his intention,--what he would do,--and right would be done. Whitson said, in conversation with Worthen's wife, that in value more was given to these two children than to the others; but he considered the matter in the light of the fact that the older children were raised, and “doing for themselves,” but these two were to be raised, and added, he did not expect to live to raise them. He, but a short time before his death, offered to sell the land, and on several occasions called it his. Letters of administration were granted to Benj. B. Whitson, who took possession of the personal effects of deceased, and closed up and settled the affairs of the estate. Complainants charge that the administrator obtained possession of the deed, and destroyed or suppressed it, and there is some evidence that the deed came to his hands after the death of his father; but he denies it in his sworn answer, and deposition, and denies ever having seen it, or of having any knowledge that it ever existed.

Izir Byars, one of the sons-in-law of Thomas, after the death of the latter, purchased of a number of the heirs their claims to or interest in the property, representing nearly one-half. He thereupon filed a bill against the heirs who had not sold, for a partition. On the hearing the court appointed commissioners to make partition, but they reported that the land was not susceptible of division without manifest injury to the parties in interest. The court approved the report, and thereupon decreed the sale of the land, and decreed that the master in chancery make the sale, after specified notice, etc. The sale was made to the Mount Carbon Coal and Railroad Company, now the Grand Tower Mining, Manufacturing and Transportation Company, for the sum of $7852.95, which was distributed and paid to the several parties to the bill, according to their interests as found by the court, the complainants receiving their share, under the order of the court.

In the view we take of the case these are the material facts. Other facts are averred, and evidence was heard on them, but we regard them immaterial to the decision of the case. The bill prayed that the title of complainants might be established and confirmed; that the proceedings for partition might be set aside as void, and that all deeds from the heirs to Izir Byars be held and declared void as to them. On a hearing the circuit court decreed the relief asked, and the defendants below bring the record to this court on error, and urge a reversal. The first question we propose to consider is, whether the deed executed by Thomas Whitson ever became operative to pass the title to the grantees named in the deed,--whether there was such a delivery as passed the title to the land from him to them. It is conceded that to have that effect there must have been a delivery. On the one side it is claimed there was, and on the other it is insisted there was no delivery. The question as to what acts are necessary to constitute a sufficient delivery to render a deed operative and to pass the title to the land, has been the subject of much discussion in this court. It is held that a delivery is essential to render a deed operative, and it does not take effect until it is delivered. Skinner v. Baker, 79 Ill. 496; Blake v. Fash, 44 Id. 302. It may be delivered to the grantee or to his agent. Nor is any particular form or ceremony necessary to constitute a sufficient delivery. It may be by acts or words, or both, or by one without the other; but what is said or done must clearly manifest the intention of the grantor and of the grantee that the deed shall at once become operative, to pass the title to the land conveyed, and that the grantor loses all control over it. Bryan v. Wash, 2 Gilm. 557. It has been held that where a deed is executed and delivered to even a stranger, to be delivered to the grantee, without conditions, it will be a sufficient delivery to pass the title. Rawson v. Fox, 65 Ill. 200. But the execution of a deed, and having it placed on record, without the knowledge of the grantee, is not a delivery. Kingsbury v. Burnside, 58 Ill. 310; Krebaum v. Cordell, 63 Id. 23. But in such a case...