Gunnell v. Cockerill

• Court: Illinois Supreme Court
• Writing for the Court: CRAIG
• Citation: Gunnell v. Cockerill, 79 Ill. 79, 1875 WL 8573 (Ill. 1875)
• Decision Date: 30 September 1875
• Parties: HENRY L. GUNNELL et al.v.RICHARD H. COCKERILL et al.

79 Ill. 79

1875 WL 8573 (Ill.)

HENRY L. GUNNELL et al.

v.RICHARD H. COCKERILL et al.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. DICKEY & CAULFIELD, for the appellants.

Messrs. HILLIS & CHRISTIAN, for the appellees. Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, exhibited in the Superior Court of Cook county by Henry L. Gunnell and others, heirs at law of Joshua C. Gunnell, deceased, on the -- day of March, 1870, against Richard H. Cockerill and others, to set aside a deed of trust executed by Joshua C. Gunnell to Cockerill, and also to cancel and set aside a sale of certain property, in the city of Chicago, made by Cockerill, under the trust deed, to one Lockhart R. Carswell, and subsequent conveyances made by Carswell to John D. Hoovers and M. W. Lord or their grantees.

The defendants put in answers to the bill, to which replication was filed, proofs were taken, and, on the hearing, a decree was rendered dismissing the bill, to reverse which the complainants have prosecuted this appeal.

Two grounds are relied upon to secure a reversal of the decree--

First--That the deed of trust made by Gunnell to Cockerill was not delivered.

Second--If the deed was delivered, the property was not sold in the manner required by the terms of the trust deed.

The deed of trust bears date March 13, 1862. Gunnell and Cockerill were, at the time, residents of Fairfax county, Virginia, but, owing to the then disturbed condition of the country in which they resided, growing out of the war, they started to go further south. When they reached Fauquier county, they stopped a few days at the residence of a Mr. Hunter.

At this time, Gunnell was largely indebted. He owed not only debts of his own, but he was security for others, and, as he was desirous of securing his own creditors in preference to those to whom he was liable as security, the deed of trust was then prepared, executed and acknowledged.

After the deed had been acknowledged, the question arose in regard to what disposition should be made of it in order that it might not be destroyed. Gunnell, the grantor in the deed, proposed to send it to the recorder's office for record. Mr. Moss, who was clerk and recorder of Fairfax county, advised against that plan, as they proposed removing the records further south, for safety. He advised Gunnell that it would be safer to leave the deed with Mrs. Moss than to place it in the office. Accordingly, the deed was placed in the possession of Mrs. Moss for safety. Prior to this time, Gunnell had frequently stated that he was involved, and that it was his intention to make a deed of trust in order to protect his own creditors. At the time the deed was executed, he was very anxious that it should be made, and was not willing to delay the preparation of the deed or its execution. It also appears that, after the deed had been executed, Gunnell frequently expressed himself gratified that he had made it.

These are some of the leading facts connected with the execution of the deed of trust, but it is urged that the evidence is not sufficient to establish the fact that the deed was delivered.

No particular form or ceremony is necessary to constitute a delivery of a deed. It may be by acts without words, or by words without acts, or by both. Anything which clearly manifests the intention of the grantor, and the person to whom it is delivered, that the deed shall presently become operative and effectual, that the grantor loses all control over it, and that, by it, the grantee is to become possessed of the estate, constitutes a sufficient delivery. The very essence of the delivery is, the intention of the party. Bryan v. Wash, 2 Gilman, 557.

It was not necessary that the deed should be actually delivered to the grantee. If it was delivered to Mrs. Moss, for and on behalf of Cockerill, for the benefit of and with the intent to protect and secure the creditors therein named, that would constitute a sufficient delivery. Gunnell, as appears from the evidence, was familiar with the steps necessary to be taken in order to make a valid deed of trust. The anxiety manifested until he had accomplished his repeatedly expressed intention, his wish to preserve the deed by placing it upon record, and the expression of satisfaction, after it was executed, with what he had done, all show clearly his intention to make the instrument effectual by a valid delivery.

From a careful examination of all the evidence, we are satisfied it was the intention of Gunnell, in the execution of the deed, that it should take effect from the time it was placed in the possession of Mrs. Moss, and we entertain no doubt in regard to the sufficiency of the evidence to establish the fact that the deed was delivered.

The question in regard to the delivery of this deed was before the Supreme Court of Appeals of the State of Virginia, on substantially the same evidence as is contained in this record, and it was held the evidence was sufficient to establish a delivery of the deed. Hunt et al. v. Brent et al., Virginia...