Logue v. Almen

• Decision Date: 11 March 1942
• Docket Number: No. 26267.,26267.
• Citation: 40 N.E.2d 73,379 Ill. 208
• Parties: LOGUE et al. v. VON ALMEN et al.
• Court: Illinois Supreme Court

379 Ill. 208

40 N.E.2d 73

LOGUE et al.

v.VON ALMEN et al.

No. 26267.

Supreme Court of Illinois.

Nov. 18, 1941.

As Modified on Denial of Rehearing March 11, 1942.

Suit by Willie Logue and others against Louisa Von Almen and others to remove certain mineral deeds as clouds upon plaintiffs' title. From a decree dismissing the complaint, plaintiffs appeal.

Reversed and remanded with directions.Appeal from Circuit Court, Fayette County; Josiah T. Bullington, judge.

Orr, Vail, Lewis & Orr, of Chicago, and Murray & Miller, of Vandalia, for appellants.

Smith & McCollom, of Flora, Will P. Welker, of Vandalia, and Guy L. Smith, of Pana, for appellees.

MURPHY, Chief Justice.

Plaintiffs Willie Logue, Hannah Logue, Mary E. Logue, George W. Logue, Diann Miller, Laura Tucker, Charles Logue and Mary Taylor own as tenants in common 120 acres of land located in an oil field in Fayette county. The Spouses of those that are married are the other plaintiffs. They began this suit in the circuit court of Fayette county to remove certain mineral deeds as clouds upon their title. All of the plaintiffs, except Mary Taylor, executed a mineral deed conveying to M. R. Von Almen an undivided one-half interest to all of the oil, gas and other minerals in the 120 acres. A few days thereafter, Von Almen conveyed various fractional interests to other parties and his grantees and their successors in title, the sole devisees of M. R. Von Almen, now deceased, and the Carter Oil Company, which holds oil and gas leases from the plaintiffs, are the defendants. There is no controversy as to the leasehold interests and rights of the oil company as plaintiffs' lessee. The sole devisee of M. R. Von Almen has filed a disclaimer of any interest in the subject matter of this suit. After a hearing of evidence, a decree was entered dismissing the complaint for want of equity. Plaintiffs have appealed direct to this court. A freehold is involved. Tucker v. Kanatzar, 373 Ill. 162, 25 N.E.2d 823.

As grounds for reversal plaintiffs contend: (1) That their deed to M. R. Von Almen was never delivered; (2) in the alternative, if it was delivered, it was procured by such fraud and misrepresentation that it should be set aside; (3) that Mary Logue, Hannah Logue and Willie Logue have a homestead interest in the land which was not released by the deed. If the deed is set aside for any one or more of the reasons urged, the rights of the grantees of M. R. Von Almen and their successors in title are in dispute. All of them, except defendant W. L. Smith, claim to be bona fide purchasers for value without notice.

All the tenants in common, except Mary Taylor and Charles Logue, are brothers and sisters, each owning an undivided one-seventh of the land. Mary Taylor and Charles Logue, niece and nephew of the other plaintiffs, each own an undivided one-fourteenth interest. In the early part of the year 1936, defendant W. L. Smith, a resident of said county, was assisting M. R. Von Almen in procuring oil and gas leases in Fayette county for the Carter Oil Company. On June 19 of that year, Smith obtained from plaintiffs Willie Logue, Hannah Logue, Mary E. Logue, George W. Logue and Lucy Logue, his wife, an oil and gas lease which was taken in the name of M. R. Von Almen which is now held by the oil company. On October 13, 1936, at the instance of W. L. Smith, the above named grantors and Diann Miller and her husband executed a mineral deed conveying a fractional interest in all of the oil, gas and other minerals to Julia E. Smith, who was the wife of W. L. Smith. In the course of obtaining this mineral deed Smith learned for the first time that other persons were interested in the lands as tenants in common. No further action was taken in reference to obtaining the signature of the other tenants in common to the deed to Julia E. Smith and although Smith retained possession of this deed it was agreed on the trial that no rights were claimed by virtue of it.

After obtaining information as to the names and residences of the other interested parties, Smith prepared an oil and gas lease to include those tenants in common who had not signed the previous oil and gas lease and also prepared a mineral deed containing the names of all the tenants in common and the spouses of those that were married. This deed contains a provision that the grantors ‘called grantor (whether two or more)’ for a consideration of $182 conveyed and warranted ‘to M. R. Von Almen * * * an undivided one-half interest in and to all of the oil, gas and other minerals,’ etc. It was made subject to the rights of all parties holding oil and gas leases. The tenants in common resided in various places in this State, and on October 15, 1936, Smith took the deed to their respective residences and all signed excepting Mary Taylor. At the same time all of those who had not signed the first oil and gas lease executed the one that Smith carried with him at this time. The acknowledgments were taken before W. L. Smith, as notary public. The deed was not recorded until March 1, 1937. This deed is the one on which this controversy centers.

On October 26, 1936, Von Almen and wife conveyed an undivided one-fourth interest in the oil, gas and other minerals, subject to the lessees' rights, to defendant W. L. Smith. The same date Von Almen conveyed to Alf Richard Thompson and Mabel Thompson 3/32nds; to Ruth G. Breen a 1/6th; to Van C. Mundwiler and Lottie Mundwiler, a 1/32nd, and on March 31, 1937, to Clarence T. Smith a 1/16th interest. The Breen fractional interest was, on June 27, 1939, conveyed by Breen and her successor in title to O. K. Miller. One-half of the Clarence T. Smith interest was conveyed to E. H. Arbuthnot on January 22, 1938.

On the question of delivery of the deed, the pertinent facts are that Smith testified he was working for Von Almen in the matter of obtaining the mineral deed. He prepared the deed and took it to the home of Willie Logue, Mary Logue and Hannah Logue, who resided together on the premises in question, and there these parties, with George W. Logue, signed it. After the signing, Smith carried the deed to the home of George W. Logue, where Lucy Logue, George's wife, signed. Smith then took the deed to the home of Diann Miller in Effingham, where she and her husband signed. From there he carried the deed to the home of Laura Tucker in Decatur, where she signed it and her husband Elzie Tucker signed it at his place of employment. Charles Logue signed the deed at his place of employment near Sullivan, and from there Smith carried the deed to the place where Emanuel Taylor, the husband of Mary Taylor, was employed, and he signed it. Smith then presented the deed to Mary Taylor at her residence in East Pekin, and after obtaining advice of counsel, she declined to sign it.

Plaintiffs contend that the deed came into Smith's hands after being executed by the various grantors for the sole purpose of obtaining the signatures of the other tenants in common and that it never became a completed delivery for the reason that Mary Taylor never signed it. Defendants urge that the handing of the deed to Smith by the various grantors was a completed delivery as to each grantor who had signed.

A deed can not be delivered to a grantee or his agent as an escrow to take effect upon a condition not appearing on the face of such deed. A deed delivered on such a condition becomes absolute at law unless the delivery is made in escrow to a third party. McCann v. Atherton, 106 Ill. 31;Stevenson v. Crapnell, 114 Ill. 19, 28 N.E. 379;Ryan v. Cooke, 172 Ill. 302, 50 N.E. 213. Plaintiffs recognize this rule of law and that the delivery of the deed in question by each grantor was to the agent of the grantee, but contend that the deed contains terms which makes it a joint deed and one that would not be binding as to any of the grantors until all had executed it, and that delivery by a part, prior to a completed execution, would not be an effectual delivery. It is the law that where a deed shows on its face that it was intended to be jointly executed so that all grantors should be bound by its covenants, the signing and delivery by a part of such grantors does not make a complete delivery. 26 C.J.S., Deeds, p. 252, § 49; Consolidation Coal Co. v. Yonts, 6 Cir., 25 F.2d 404; Overman v. Kerr, 17 Iowa 485; Devlin on Real Estate, 3d ed., p. 442, sec. 277. However, the deed at bar can not be construed as containing such a condition. The particular parts of the deed relied upon as expressing such a condition are that the grantors, under the terms of general warranties, conveyed an undivided one-half interest in the oil, gas and other minerals to Von Almen. The point of difference in construction is that plaintiffs contend it was a conveyance of one-half of the whole, and that the covenants in the deed would not be binding and there could not be a completed delivery until all had executed it. The defendants contend it was an intended conveyance of one-half of each tenant in common's share, and that the warranties became binding as to each grantor when he attached his signature, followed by delivery, and that there was a completed delivery as to all the grantors named in the deed except Mary Taylor.

The terms of the deed limit the transfer to an undivided one-half interest. It is provided in the deed that the grantee's rights were subject to the leasehold interest, that the grantee should receive and enjoy the undivided interest in and to all rents, royalties and other benefits which might accrue under the terms of the lease, the same as though he, the grantee, had at the time of the making of the lease been the owner of a similar undivided interest in the lands. The grantee was also given the right of ingress and egress for the purpose of mining, developing, exploring and marketing oil, gas or other minerals from the premises. Both of these provisions are consistent with the rights that a tenant in common may exercise...