Helper v. Connolley

• Citation: 86 N.E.2d 226,403 Ill. 358
• Decision Date: 19 May 1949
• Docket Number: No. 31000.,31000.
• Parties: HELPER v. CONNOLLEY et al.
• Court: Supreme Court of Illinois

403 Ill. 358

86 N.E.2d 226

HELPER

v.CONNOLLEY et al.

No. 31000.

Supreme Court of Illinois.

May 19, 1949.

Appeal from Circuit Court, Marshall County; Henry J. Ingram, judge.

Suit by Lottie Helper against Margaret Connolley and others to establish a lost deed in favor of the plaintiff and to compel a conveyance thereof. From an adverse decree, the plaintiff appeals.

Decree affirmed.

Walter C. Overbeck, of Henry, for appellant.

Fred W. Potter, Jr., of Chicago, for appellees.

SIMPSON, Justice.

Appellant, Lottie Helper, filed suit December 1, 1947, in the circuit court of Marshall County against her daughter, appellee Margaret Connolley, and others, to establish a lost deed in her favor to residence property in Henry, Illinois, and to compel a conveyance thereof to her. A master in chancery reported in favor of appellant but the circuit court sustained exceptions to the report and dismissed the complaint as amended, for want of equity. A freehold being involved, the appeal comes directly to this court.

Soon after her husband's death in 1919, appellant purchased the property in question and resided thereon until May 12, 1947. December 7, 1933, being then a widow about 62 years of age, she conveyed it by warranty deed to her son, Harold H. Helper. That deed is not in question here, but it is conceded title passed under it to Harold. At the time of the conveyance the son was married but his wife died October 10, 1943. He departed this life testate July 4, 1944, while a resident of Los Angeles, California. By his will the premises in question were devised to his sister, appellee Margaret Connolley. Appellant placed much reliance upon her son Harold for advice and financial assistance. Her deed to him was made for the expressed consideration of one dollar and natural love and affection.

Thomas C. Waterous, an attorney of Henry, served as agent and attorney for appellant on different occasions, took her acknowledgment of the deed to Harold, and also served as attorney and agent in some matters for Harold. January 26, 1934, Harold H. Helper wrote a letter to attorney Waterous in which he said in part, ‘Regarding the deed to the town property. I would assume that you felt a deed was better than a second mortgage. I am enclosing the signed deed transferring the property back to mother as you requested.’ February 16, 1934, attorney Waterous wrote to Harold Helper saying, in part, ‘I am enclosing herewith the deed of the home place which it will be necessary to have your wife sign and acknowledge before a notary. This deed from yourself back to your mother, according to my understanding, is to be held in escrow, and in event of your mother's decease it is to be returned to you.’ Both of the letters referred to the property here in question. Objection was made to the introduction of the letter from attorney Waterous to Harold but appellant does not argue that its admission was error. On the other hand, her brief quotes a portion of it as being favorable to her. Had there been complete delivery to Waterous for appellant, his subsequent statement could not undo what had been done. What he said in the letter, however, may be considered in determining whether or not such delivery had been effected.

Why attorney Waterous requested the deed from Harold back to his mother is not disclosed nor does the nature of the request appear. Evidently there was another communication between the two which does not appear of record. Waterous had gained the impression from some source that the deed was to be held in escrow and upon the mother's death returned to Harold. Harold's letter of January 26, 1934, gave no instructions whatever concerning the delivery of the deed. The letters from which the above-quoted excerpts were taken were found in the respective files of Harold H. Helper and attorney Waterous after they departed this life, the latter having died in August, 1941. No other correspondence bearing upon the delivery of the deed in question was produced. Harold's letter found in the attorney's file almost three years after Harold's death was the first and only information appellant had concerning this deed.

The appellant contends that when Harold sent his deed to attorney Waterous that constituted a delivery to her because Waterous was her attorney and agent; that delivery being effected, title could not thereafter be divested through any act of the grantor, even though the deed should later come into his possession; that the deed having been returned to him for a specific purpose did not affect the legal delivery and under such circumstances when the deed is not produced the presumption arises that it was destroyed by the grantor and, having been destroyed by him, the appellant is not required to make strict proof of its contents in order to establish a legal right founded thereon.

Appellee Margaret Connolley takes the position that there was no delivery of the deed from Harold to appellant; that attorney Waterous was not such agent of the mother as to render delivery to him the same as delivery to her; that there were no instructions given by Harold concerning delivery and that delivery to a stranger or third person under the circumstances here shown is not sufficient to pass title to the grantee named in the deed; that attorney Waterous was agent for Harold as well as for appellant; that the evidence fails to establish the contents of the deed and no presumption...