Hayes v. Boylan

• Decision Date: 12 May 1892
• Citation: 30 N.E. 1041,141 Ill. 400
• Parties: HAYES v. BOYLAN et al.
• Court: Illinois Supreme Court

141 Ill. 400

30 N.E. 1041

HAYES

v.BOYLAN et al.¹

Supreme Court of Illinois.

May 12, 1892.

Appeal from circuit court, Livingston county.

Bill for partition by Thomas Boylan and John Boylan against Charles Boylan and Mary W. Hayes. Complainants obtained a decree, and defendant Mary W. Hayes appeals. Reversed.

Sheen & Lovett, for appellant.

Puterbaugh, Page & Puterbaugh, for appellees.

SCHOLFIELD, J.

Thomas Boylan and John Boylan filed their petition for partition in the circuit court of Livingston county, praying for the partition of a certain tract of land lying in that county, which they alleged was conveyed to them and their brother, Charles Boylan, as tenants in common, by deed of their father, Patrick Boylan. Mary W. Hayes and Charles Boylan were made defendants to the petition, and they each answered; the answer of Mary W. Hayes danying that the deed under which the petitioners claim was ever delivered, and alleging that the land in question was devised by the last will and testament of Patrick Boylan to Charles Boylan, in trust, in part for her use. On hearing, the circuit court decreed that the prayer of the petition be granted, and that decree be made accordingly, and Mary W. Hayes, by her appeal, brings that decree before us for review.

The decree finds that title was vested in the petitioners by the deed of Patrick Boylan. That deed is inconsistent with and repugnant to the rights of the heirs at law of Patrick Boylan, deceased, if he died intestate; and it is also inconsistent with and repugnant to the devises in what is set up in the answers as his last will and testament. The question, therefore, whether the decree of the circuit court is erroneous depends entirely upon whether that deed operated as a valid conveyance of the land and in the determination of that question it cannot be necessary, nor even proper, to either pass upon the validity of the will or to give construction to its terms. The only evidence in the record in regard to the execution of the deed is that of Charles Boylan. The evidence of John Boylan, having been objected to for incompetency, must be excluded. Section 2, c. 51, Rev. St. 1874, p. 488. Charles Boylan produced the deed, and testified in regard to its execution thus: ‘My father signed a deed to the Livingston county land at my house, in may presence, while he was residing with me. No one else was present. I have the deed with me. This is it. I think father signed it the day it bears date. He signed it the day before Mr. Hough took the acknowledgment. * * * No part of the $6,000 mentioned in the deed was paid father. Nothing was paid for it. After father signed the deed, it remained in his room. I think I saw him hand it to Hough. When Hough signed it he gave it to father, and father kept it. I went down stairs with Mr. Hough, and came back, and he handed me the deed, and said, ‘Take this deed, and put it in our box in the bank.’ Before his sickness we each had one private box in the bank. His eyes were so bad that he could not attend to it. Sometimes he had the cashier at the bank to look over his papers. He had me to bring his box home, and look his papers over, and took such of his papers as he thought valuable, and put them all in the box with mine. He said, ‘Take this deed, and put it in the box in the bank.’ When he gave me the deed he said, ‘The boys need not know anything about this till after my death.’ That was all he said. I put the deed with the other papers, as directed, and it remained there till after father's death.' On cross-examination, he further testified, among other things: ‘John was there one day, talking about his family. He had a large family of girls, was hard up, and owed father some interest; and father said: ‘You are better off than you think you are. You will get $2,000 out of the land over the river after I am dead, and that will come handy.’ About $2,000, I think, is the way he put it. Father retained possession of the land through John Kane and his sons during his life. They had a written lease. In 1890, after making the deed, he got some cash rent from there. * * * When father first spoke of making the deed he spoke of reserving the rents. That was a couple of months before he made it. * * * The deed was given me immediately after it was acknowledged. He told me to put it in the box, in the box he and I kept our papers in, and I did so. It was my box, and he had papers in it, and the deed was put in there. It was delivered the way I stated.' This leaves no doubt that no act was done by the grantor intended as a present delivery of the deed; for handing it to Charles Boylan, and at the same time telling him, ‘Take this deed, and put it in our box in the bank,’ was not a delivery to Charles, but it was the mere employing him as the agent of the grantor to do an act for him whereby he could retain the custody of the deed during his life. In thus taking and depositing the deed, the act of Charles was the act of Patrick, and, although the box in the bank belonged to Charles, yet, since it was used by both Patrick and Charles, and under the control of each, the deed in that box was just as much within the possession and control of Patrick as if he had retained it about his person. Jordon v. Davis, 108 Ill. 336;Bovee v. Hinde, 135 Ill. 137, 25 N. E. Rep. 694; Chadwick v. Webber, 3 Greenl. 141.

It is plain that the intention of Patrick Boylan was to have the deed take effect only after his death. On its face, the...