Dagley v. Black

• Decision Date: 19 June 1902
• Citation: Dagley v. Black, 197 Ill. 53, 64 N.E. 275 (Ill. 1902)
• Parties: DAGLEY v. BLACK et al.
• Court: Illinois Supreme Court

197 Ill. 53

64 N.E. 275

DAGLEY

v.BLACK et al.

Supreme Court of Illinois.

June 19, 1902.

Appeal from circuit court, White county; P. A. Pearce, Judge.

Action by Lucy Dagley against Andrew G. Black, executor of the will of Silas W. Powell, and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Holderby & Bainum and B. S. Organ, for appellant.

C. S. Conger and J. I. McClintock, for appellees.

This is an action of ejectment, brought by the appellant, Lucy Dagley, against the appellees, Andrew G. Black, executor of the last will of Silas W. Powell, deceased, and Robert J. Bailey (the latter being merely a tenant of the executor), for the recovery of a house and lot, consisting of six or seven acres in Norris City, in White county. Appellees pleaded not guilty. At the August term, 1901, of the circuit court of White county the cause was tried by the court without a jury, and the issues were found for the appellees. Appellant availed herself of her right to another trial under the statute, and the cause was tried a second time at the January term, 1902, of said court, before the court and a jury. After the evidence was introduced on behalf of both parties, the court gave a written instruction to the jury to find a verdict of not guilty. Thereupon judgment was rendered for the appellees at the cost of the appellant, and execution was awarded. The present appeal is prosecuted from the judgment so entered by the circuit court.

Silas W. Powell, commonly called Wright Powell, deceased, died testate on August 8, 1899, at Norris City, leaving an estate worth some $12,000 or $15,000. He was unmarried, and about 60 years old, and had been in bad health for several years before his death. The appellant, Lucy Dagley, was his niece, the daughter of his sister, and had been staying with him as his housekeeper, but was absent at the time of his death, and for some time before his death, on a visit to one of her relatives. Her maiden name was Lucy Bozeman, and she was called by her uncle, and among her friends, before her marriage, ‘Pet’ Bozeman. By the will the appellee Andrew G. Black was appointed executor. The appellant filed an affidavit that she held under a common source of title with the appellees, and claimed title under a deed alleged to have been made to her by her deceased uncle, Wright Powell, a few days before his death. The material facts in regard to the execution of the deed, if any such deed was executed, appear in the testimony of William H. Strottner. Strottner was a friend and neighbor of Powell, and was sent for by him a few days before Powell's death. Powell told him that he had some notes and deeds, which he desired to dispose of, and under his direction Strottner went to a trunk in which Powell kept his papers, and took from it some notes and two deeds. Strottner says: ‘One of the deeds he mentioned when he gave them to me was to Ora Gillam, a lady he had to keep house for him, but he says: ‘I have changed my notion about giving her the deed.’ Then he mentioned the other deed, and said: ‘This is for Pet,’ as he called her. * * * ‘I want her to have this property here,’-the home property he then lived in; and he gave me the notes and deeds, except the deed to Ora Gillam, which was left with the other papers. I then proceeded to give the notes away as directed. He said he wanted to give them to certain ones. * * * I wrote a little note to each one, and inclosed it with the note in an envelope, and backed the envelope. I read the letter to him. Mrs. Dagley's deed was the last one. I had her note, or maybe two notes, amounting to $200.00, or thereabouts, and this deed. I wrote her a note about the business of getting it to her, and what he said, and inclosed that, and when I went to place it in the envelope, the envelope was too small to go in without folding. I do not remember the substance of the note. * * * When he gave me the deed he told me to send it with the other papers to Mrs. Degley,-that is, Pet Bozeman. She was not married then. I wrote this little note I have been telling you about, and inclosed the notes, and was going to put in the deed. It was a small envelope, and it would not hold the deed very well without folding the deed. I said, ‘It will not go in this envelope, and I will leave this here, and will be back in a few days, or Pet will be up here;’ and that is all I know about it. The reason I did not send the deed at that time was that the envelope I used was too small to put the deed in with the other papers. There was no other reason except that. Mr. Powell said nothing about sending it then. When I said the envelope was too small, he answered ‘All right,’ or something. I think that was the only reply he made. I never had anything to do with the deed except what I have stated. I never saw it afterwards. I heard him say lots of times he intended to give Pet the property he then lived in in Norris City. After this Mr. Powell lived but a few days. I think this was in the first days of August. I saw him but once after that. I left the deed there in his house. I laid it down on the dresser where I was writing, I think, and went off, and that is the last I ever saw of it, and all that I know about it. I did not deliver it. Possibly I said on the former trial of the case that I gave it back to Mr. Powell to put into the trunk, or left it on the dresser. I either gave it back to him to put into the trunk, or laid it down upon the dresser; I am not certain which. I do not remember whether he took it into his hands again or not. My recollection now is, that I laid it down there on the dresser, where I had been writing. I was back there once on Wednesday before he died, but nothing was said then about any business. This transaction took place four, five, or six days-I cannot say which-before he died.'

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

1. Appellant produced upon the trial no deed executed to her by her uncle, Silas W. Powell. If such a deed was executed, the testimony does not show clearly what became of it. Certainly there never was any formal delivery of it to the appellant. The first question which arises in the case is whether there was a legal delivery of the deed to the appellant. In order that a deed may be operative as an effectual transfer of title to land, there must be a delivery of it. ‘Delivery is the final act on the part of the grantor, by which he consummates the purpose of his conveyance, and without it all other formalities which have preceded are impotent to render it effectual as an instrument of title.’ Provart v. Harris, 150 Ill. 40, 36 N. E. 958. In other words, to constitute a good delivery of a deed, the grantor must devest himself of all power and dominion over it. In Provart v. Harris, supra, we said (page 47, 150 Ill., page 959, 36 N. E.): ‘While it may not be essential in all cases that the deed should be delivered into the actual possession of the grantee (Gunnell v. Cockerill, 79 Ill. 79),...