Hoig v. Adrian Coll.

• Decision Date: 30 September 1876
• Citation: 83 Ill. 267,1876 WL 10333
• Parties: AARON HOIG et al.v.ADRIAN COLLEGE et al.
• Court: Illinois Supreme Court

83 Ill. 267

1876 WL 10333 (Ill.)

AARON HOIG et al.

v.ADRIAN COLLEGE et al.

Supreme Court of Illinois.

September Term, 1876.

APPEAL from the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding. On the 23d day of October, 1872, Alimer Hoig, since deceased, with one Soll L. Thrap, an agent for Adrian College, a corporation existing under the laws of the State of Michigan, went to the office of the witness Dryden to have papers prepared in relation to the conveyance to Adrian college of certain real estate situated in this State, and then owned by decedent. It was the intention of the parties to have the land conveyed to the college with a reservation of a life estate to the grantor and his wife. Various modes of effecting the object in view were discussed. It was finally agreed, a deed for the property should be executed, and the college should give back what the parties called a ““mortgage,” to be executed by the college, to secure the life estate. Accordingly, a deed and mortgage were prepared by Dryden. It appears Mr. Hoig signed it at the time, but his wife was to come in on the next day, and sign and acknowledge it with him. It was agreed the deed was to remain in the hands of Dryden until the “mortgage” should be executed by the college, in conformity with the laws of Michigan, and when returned the deed and “mortgage” were both to be placed on record in the proper office. Whether the “mortgage” was, in fact, executed on behalf of the college, is one of the controverted facts in the case, upon which the evidence is conflicting. A life lease was prepared, duly signed by the officers of the college, and forwarded, with the recommendation of counsel it would better secure the life estate. Mrs. Hoig declined to sign the deed. This fact was communicated to the agent of the college, and he was asked if the deed would be accepted without the wife's signature to it. His reply was, it would be, but it does not appear that answer was ever made known to Mr. Hoig. It was suggested, if Mrs. Hoig persisted in her refusal to sign the deed, it would not be necessary to secure to her a life estate, but to the grantor alone; and if that was satisfactory to him, the lease which had been previously prepared should be returned, that the college might make a new one for his special benefit. That was never done, nor does it appear the proposition was ever disclosed to Mr. Hoig, who was, at that time, confined to his house by sickness, which terminated in his death. He died on the 5th day of January, 1873, and the deed was placed on record by Dryden, without any special order from any one, on the 8th day of the same month. Neither the “mortgage” nor any life lease was recorded with it. Nothing was paid for the land. It was understood, if conveyed, it was to be a donation to the college.

This bill was filed by the heirs of the grantor, to set aside the deed as a cloud upon the title to the land that had descended to them. The circuit court found the equities with defendants, and dismissed the bill. Complainants bring the cause to this court on appeal.

Messrs. PORTER & MOSHER, for the appellants.

Messrs. STEWART & PHELPS, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

One position taken is fatal to the present decree, and indeed, any decree in favor of defendants. It is, the deed which was executed by Alimer Hoig, in his lifetime, was never delivered to the grantee named, nor did the condition upon which it was to be delivered ever happen; and, therefore, no title to the land ever passed to the defendant College. When the deed was prepared and signed by Hoig it was left with Dryden, that it might be signed and acknowledged by his wife on the next day, with the grantor. It was expressly agreed the deed should not be delivered until signed and acknowledged by the wife, nor until what the parties called a “mortgage” to secure to the grantors a life estate in the lands, had been executed ready for delivery. It was to be executed in conformity with the laws of the State of Michigan, where ““Adrian College,” to which the grant was to be made, was situated. On the question whether any ““mortgage” securing a life estate to the grantor and his wife, was ever made by the officers of the college, the testimony is contradictory; but we think the decided preponderance of the evidence is, no such “mortgage” was executed. It is certain no such instrument was shown to the grantor, nor was he advised it was ready for him. It was his privilege to judge for himself whether the terms upon which he was willing to deliver the deed to his property as a donation, had been performed. The scrivener in whose custody the deed was left was not invested with any discretion in regard to it. He had no authority to deliver it until the grantor was satisfied it should be. Being a voluntary conveyance, without consideration, the grantor was at liberty at any time to withdraw the deed from the possession of the custodian, and the grantee could have no just cause to complain. The grantor was under no legal obligation to complete the donation.

At the time of the trial of...