Hollenbeck v. Hollenbeck

• Decision Date: 17 April 1900
• Parties: HOLLENBECK v. HOLLENBECK.
• Court: Illinois Supreme Court

185 Ill. 101

57 N.E. 36

HOLLENBECK

v.HOLLENBECK.

Supreme Court of Illinois.

April 17, 1900.

Appeal from Grundy county court; S. C. Stough, Judge.

Bill by James Hollenbeck against Albert Hollenbeck. From a decree dismissing the bill, complainant appeals. Affirmed.E. L. Clover and N. E. Coles, for appellant.

Cornelius Reardon and Samuel Richolson, for appellee.

BOGGS, J.

The decree appealed from dismissed a bill in chancery filed by the appellant against the appellee. It was essential to the maintenance of the bill that the appellant should prove that a certain deed, signed and acknowledged by William H. Curtis, deceased, and Jane, his wife, also deceased, on the 8th day of October, 1875, purporting to convey to him a certain tract of land, containing 80 acres, had been delivered by the grantor. The deed was never recorded, and was in the possession of the grantor therein, William H. Curtis, at the time of his death, which occurred on the 23d day of September, 1897,-a period of about 22 years after the execution of the deed. The appellant, the appellee, and one Reuben Hollenbeck are brothers. Their mother, after the death of their father, intermarried with the grantor, William H. Curtis, but the mother had no interest in the tract of land here involved, other than such as accrued from the marriage relation with said grantor, Curtis. Albert was the elder, and the appellant the younger, of the brothers. At the time the deed appellant here seeks to enforce was signed and acknowledged, the grantor also signed and acknowledged a deed to the said appellee, and a deed to Reuben Hollenbeck, each of his stepsons, conveying to the, respectively, certain tracts of land. Each of the three deeds contained the following statement as to the consideration thereof: ‘That the said party of the first part, for and in consideration of the sum of the one dollar to them in hand paid, the receipt whereof is hereby acknowledged, and in the further consideration of the natural love and affection borne by the said party of the first part towards the said party of the second part,’ etc. Each also contained the following conditions: ‘Upon the conditions that said premises shall not be subject to the debts of the said party of the second part, nor be sold, aliened, or conveyed by the said party of the second part during the natural lives of the said party of the first part, or of the life of the survivor of them.’ It is conceded that the deed to said Reuben and that to the appellee were never delivered. Appellant testified that the deed to him was delivered to him, and remained in his possession for some months, and was then returned by him to his mother, the wife of the grantor. It is undisputed that neither of the three deeds ever passed out of the possession and custody of the grantor, unless the deed to appellant was in the possession of the appellant for a period of a few months, as testified to by him. Appellee contends that all three of the deeds remained constantly in the possession of the grantor therein, and that neither of them was ever out of his custody. On the 3d day of March, 1891, the said grantor in the said three deeds executed three other deeds: (1) To the appellant, conveying to him certain town lots in the town of Morris, on which was situate a dwelling house; (2) a deed to the appellee for certain tracts of land including the tract described in the deed made to the appellant in 1875; and (3) a deed to Reuben Hollenbeck for certain other tracts of land. These last-mentioned deeds were all delivered to and accepted by the respective grantees therein. On the 5th day of May, 1894, the grantor, William H. Curtis, had in his possession the three deeds first mentioned, and on that day he indorsed on each of said deeds the following: ‘This deed and two others of the same date were never delivered, but were retained by me until they finally, with other papers belonging to me, went into the possession of A. Hollenbeck, and I make this memorandum, that no question may arise concerning them after my death. W. H. Curtis. Morris, Ill., May 5th, 1894. S. C. Stough, Witness.’

We think the decree should be affirmed on the ground that the chancellor was justified in refusing to find from the evidence that the deed in question was delivered to the appellant. It may be conceded that the testimony of the appellant, standing alone, would establish that the deed was delivered to him, though the inference is fairly deducible from his testimony that such possession as he had of the deed, if any he had, was not given, on the part of the grantor, with the intent that the custody of the deed should remain permanently with the appellant, or...