McReynolds v. Miller

• Citation: 22 N.E.2d 951,372 Ill. 151
• Decision Date: 10 October 1939
• Docket Number: No. 25187.,25187.
• Parties: McREYNOLDS v. MILLER et al.
• Court: Supreme Court of Illinois

372 Ill. 151

22 N.E.2d 951

McREYNOLDS

v.MILLER et al.

No. 25187.

Supreme Court of Illinois.

Oct. 10, 1939.

Suit by James Wilson McReynolds against J. R. Miller, administrator, and others, to set aside a decree setting aside and expunging the record of a deed to certain realty. From a decree of dismissal, plaintiff appeals.

Reversed and remanded with directions.Appeal from Circuit Court, Montgomery County; William B. Wright, judge.

Paul McWilliams and H. B. Tunnell, both of Litchfield, for appellant.

Dennis J. Godfrey, of Litchfield, for appellees.

JONES, Justice.

This is an action to impeach a decree entered against appellant, James Wilson McReynolds, January 27, 1932. The decree set saide and expunged the record of a deed to certain real estate, which deed had been previously executed by the plaintiff in that suit, Mary J. McReynolds, to appellant as grantee. The basis of the decree was that the deed had never been delivered and was recorded by mistake. The circuit court of Montgomery county dismissed, for want of equity, the complaint to set aside the decree. Since a freehold is involved, the appeal has been prosecuted directly to this court.

Appellant's complaint sets forth, in full, the proceedings in the original suit and alleges errors of law and of fact. It also charges that the decree was not supported by competent evidence, and that appellant's rights were prejudiced by the gross neglect of his guardian ad litem. Mary J. McReynolds died April 11, 1937. Her heirs and the administrator of her estate were named as defendants in this suit. At the time the original decree was rendered against him appellant was a minor, seventeen years of age. He became twenty-one September 12, 1935, and instituted this suit September 4, 1937. The rule is firmly established in this State that one who was an infant when a decree was entered against him may bring a suit to impeach or set aside a decree for fraud, or for error merely. He may exercise this right at any time during his minority or afterwards within the period in which he may prosecute an appeal from the decree. Sharp v. Sharp, 333 Ill. 267, 164 N.E. 685;Lloyd v. Kirkwood, 112 Ill. 329;Kuchenbeiser v. Beckert, 41 Ill. 172. Here the decree was entered against appellant in 1932. The Practice Act then in force, which governs here (rule 1 of this court, Ill.Rev.Stat.1939, c. 110, § 259.1), provided that a writ of error could be sued out within two years after the infant attained majority. Smith-Hurd Stats. c. 110 appendix, § 117. This complaint was, therefore, filed in apt time.

In the original suit appellant was served with process and a guardian ad litem was appointed for him. The guardian filed a formal answer of denial. No evidence in behalf of appellant was introduced and much improper evidence crept into the record. Many of the questions on vital issues were highly objectionable on the ground they were leading, and in much of the testimony witnesses testified to matters of law and others of which they could not have had positive knowledge. These errors cannot be allowed to prejudice the rights of appellant. When the property rights of an infant are in litigation and the infant is in court, he at once becomes the ward of the court, whose duty it is to see that his rights are properly protected. The law contemplates a defense, in fact, so far as is necessary to protect the interests of the ward. The court is bound to specially guard the interests of minors, and to notice legitimate and substantial objections whether raised by the guardian or not. It is error to enter against a minor a decree not supported by competent evidence. Lloyd v. Kirkwood, supra; Tymony v. Tymony, 331 Ill. 420, 163 N.E. 393;Harris v. Young, 298 Ill. 319, 131 N.E. 670;Cartwright v. Wise, 14 Ill. 417. Appellant's rights were obviously not properly safeguarded in the original suit. It is our province to determine whether the decree was sustained by competent evidence, considered with the evidence introduced by appellant in this suit.

Appellant was a grandson of Mrs. McReynolds and lived with her on a small farm near Litchfield, Illinois. He worked on the farm. December, 1930, Mrs. McReynolds went to the First National Bank of Litchfield and asked Arthur F. Heath, cashier of the bank, to prepare a deed of her farm to appellant. He did this, she signed it and left it with the bank. The bank had it recorded immediately but Mrs. McReynolds, Heath, and J. R. Miller, president of the bank, all testified she did not give any instruction to have the deed recorded. Two witnesses for appellant testified she knew it was recorded. She denied she knew of it until sixty days before her suit was instituted. In September, 1931, appellant left his grandmother and went to live with an aunt. Her complaint to set aside the deed was filed December 8, 1931.

The question of law to be decided is whether or not there was a valid delivery, in escrow, of the deed. The greater portion of the evidence relates to the question of whether Mrs. McReynolds instructed the escrowee to have the deed recorded. However, in cases of delivery in escrow, the controlling question is whether or not the grantor reserved the right to recall or revoke his action. The fact that the deed is not to be recorded until after the death of the grantor does not affect the delivery. Kirkwood v. Smith, 212 Ill. 395, 72 N.E. 427;Kelly v. Parker, 181 Ill. 49, 54 N.E. 615. The presumption of law is in favor of delivery, and the burden of proof...