Otis v. Spencer

• Decision Date: 12 May 1882
• Citation: 1882 WL 10267,102 Ill. 622,40 Am.Rep. 617
• Parties: LUCIUS B. OTIS, Receiver,v.SUSAN B. SPENCER.
• Court: Illinois Supreme Court

102 Ill. 622

1882 WL 10267 (Ill.)

40 Am.Rep. 617

LUCIUS B. OTIS, Receiver,

v.SUSAN B. SPENCER.

Supreme Court of Illinois.

Filed at Ottawa May 12, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. WILLIAM H. BARNUM, Judge, presiding.

Mr. J. L. HIGH, for the appellant:

Spencer was not a competent witness, under the ruling in Mueller v. Rebhan, 94 Ill. 142, as the very question in dispute is, whether the property is the separate estate of the wife. The statute has not changed the common law rule, except where the litigation concerns her separate property. The exclusion at common law does not rest upon the ground of interest of the parties, but is based upon grounds of public policy. 1 Phillips on Evidence, 77, and notes; 2 Starkie on Evidence, 550; Reeves v. Herr, 59 Ill. 81; Neubrecht v. Santmeyer, 50 Id. 74.

To constitute a delivery of a deed there must be an existing intention upon the part of the grantor that the act shall have such effect, and such intention must be evidenced by an actual delivery to the grantee, or some person in his behalf, and the grantor must part with all control over the instrument. These three elements must combine to make a valid delivery, and the absence of either element is fatal. Cook v. Brown, 34 N. H. 460; Maynard v. Maynard, 10 Mass. 456; Wilson v. Cassidy, 2 Ind. 562; Dearmond v. Dearmond, 10 Id. 191; Berg v. Anderson, 22 Id. 36; Prutzman v. Baker, 30 Wis. 644; Wiggins v. Lusk, 12 Ill. 132; Gunnell v. Cockerill, 84 Id. 319.

If it should be contended that the delivery to Loomis, or to the vendor, operated to pass title, reference is made to the following authorities as conclusive against the position: Herbert v. Herbert, Breese, 354; Bryan v. Wash, 2 Gilm. 557; Hulick v. Scovill, 4 Id. 159; Kingsbury v. Burnside, 58 Ill. 310.

Counsel also argued at considerable length that Spencer being insolvent at the time of the conveyance, and the facts and circumstances were such as to give the grantee notice of his insolvency, or at least put her on inquiry, it was fraudulent as to the grantor's creditors, citing secs. 4 and 5 of the Statute of Frauds, and Columbine v. Penhall, 1 Sm. & Grif. 228; Compton v. Cotton, 17 Ves. 264; Bulmer v. Hunter,L. R. 8 Eq. 46; Bump on Fraudulent Conveyances, 310; Emerson v. Bemis, 69 Ill. 537; Norton v. Norton, 5 Cush. 524; Eddy v. Baldwin, 23 Mo. 538; Hackett v. Bailey, 86 Ill. 74.

Mr. HENRY B. MASON, and Mr. OWEN F. ALDIS, for the appellee:

Delivery was for the first time put in issue at the rehearing in the circuit court. Spencer v. Otis, 96 Ill. 570.

Record and acknowledgment are prima facie evidence of delivery. Himes v. Keighblingher, 14 Ill. 469; McConnell v. Johnson, 2 Scam. 522.

In addition to this we have the positive testimony of both grantor and grantee that there was delivery in apt time, and there is absolutely no evidence to the contrary.

David D. Spencer is a competent witness for his wife on two grounds, either one of which is sufficient, and both combine in this case, viz: the litigation concerns her separate property, and his testimony relates to conversations and transactions occurring prior to marriage. Hurd's Stat. 1881, secs. 1, 5, “Evidence and Depositions;” McNail v. Ziegler, 68 Ill. 224; Mueller v. Rebhan, 94 Id. 142.

The conveyance was made in consideration of marriage, which is a valuable consideration, and valid against the grantor's creditors. Rockafellow v. Newcomb, 57 Ill. 186; Rose v. Sanderson, 38 Id. 247; North v. Ansell, 2 P. Wms. 618; Barrow v. Barrow, 2 Dickens, 504; Partridge v. Gopp, 1 Eden, 163; Cadegan v. Kennett, 2 Cow. 432; Compton v. Cotton, 17 Ves. Jr. 264; Ex parte Mayor, Montague, 293; Hardy v. Green, 12 Beav. 182; Fraser v. Thompson, 1 Gifard, 49; Magniac v. Thompson, 7 Peters, 361; Frank's Appeal,59 Pa. St. 190; Jones' Appeal, 62 Id. 324; Smith v. Allen, 5 Allen, 454; Andrews v. Jones, 10 Ala. 400; Marshall v. Morris, 16 Ga. 368; Bank v. Marchand, Charlton, 247; Bunnell v. Witherow, 29 Ind. 123; Bonser v. Miller, 5 Oregon, 110; Eppes v. Randolph, 2 Cal. 103; Herring et al. v. Wickham et ux. 29 Gratt. 629; Prewit v. Wilson, 13 Otto, 22.

Grantee had no notice of any fraudulent intent or insolvency of the grantor, nor was she put upon inquiry. Prewit v. Wilson, 13 Otto, 22; Herring et al. v. Wickham et ux. 29 Gratt. 629.

Mr. JUSTICE WALKER delivered the opinion of the Court:

On the failure of the State Savings Institution of Chicago, appellant was appointed receiver of its assets, by a decree of court. He, as such receiver, filed a bill to subject the property, the title to which is in controversy, to the payment of the debts of the insolvent institution. The bill alleges that David D. Spencer, one of appellees, who was at the time, and had been some years previously, the president of the institution, was indebted to it on a note for $39,240.73; that appellant, as such receiver, had sued on it, and recovered a judgment; that a part of the indebtedness was incurred as early as the last of December, 1875. The bill also alleges Spencer's insolvency; that the premises were his homestead, in which he and his family resided up to the time of the failure of the bank. Being wholly insolvent, and in contemplation of a marriage subsequently solemnized between him and Mrs. Spencer, then Susan A. Dennis, he, on the 23d day of November, 1876, made and acknowledged a deed conveying his homestead to her; that the deed was made to hinder, delay and defraud his creditors. Service was had by publication. There being no answers filed, the bill was taken as confessed, and the relief prayed was granted. Defendants subsequently, on leave, under the statute, filed an answer. A hearing was had, resulting in a decree in favor of complainant. The case was brought to this court, and the decree of the court below was reversed, and the cause remanded. It will be found reported in 96 Ill. 570. The bill was amended by alleging that the deed of conveyance for the property was never delivered, and therefore no title passed under it. Another hearing was had, and the bill was dismissed, and the case is again brought to this court.

It is first insisted, that D. D. Spencer, being the husband, was not a competent witness in favor of the wife, and his evidence should not be considered. It is urged that he, under the statute, could not testify in her favor, except in case her separate property was concerned,--that whether or not this is her property, is the question here litigated. Had counsel taken the trouble to turn to the case of McNail v. Ziegler, 68 Ill. 224, he would have found that the same point was presented, and decided adversely to his position, and he most probably would not have urged the point. If he had turned to the case of Mueller v. Rebhan, 94 Ill. 149, he would have found that even if her separate property was not concerned, he was a competent witness, and might testify to transactions and conversations occurring before the marriage. The testimony of the husband related only to such transactions and conversations, in this case. We are satisfied with the construction there given, and do not have the slightest disposition to overrule or modify those cases.

Having disposed of this preliminary question, we shall proceed to the consideration of the important questions of the case. The fact that the deed was made, acknowledged and recorded, is not contested, but it is denied it ever became effective, for the want of a sufficient delivery. From the long line and numerous decisions of this court the rule is well settled, without referring to the decisions of other courts, that to render a deed of conveyance operative to pass the title, there must be an unconditional delivery, or a delivery in escrow. This has been announced in almost every volume of our reports, and if it had not been, the rule is so elementary as to require the citation of no adjudged case for its support. We are not aware that the rule has ever been denied. But what acts constitute such a delivery has been the subject of much controversy, and we have held in many cases that the act must be such as to manifest an intention by the grantor to make a delivery, and to part with the possession and control of the instrument; and it has been said that intention may be gathered by acts, by words, or by both. It has been said it is not essential that the deed be delivered to the grantee, but may be to an agent or another for the grantee. This has been so repeatedly said that it should be familiar to the entire profession, hence we refrain from referring to the cases.

Was the deed delivered by the grantor to the grantee in this case, is the first and an important question. Mrs. Spencer swears that on the 11th, 12th or 13th of December, 1876, he handed her the deed, and after some conversation relating to it, she returned it to him for the purpose of having it recorded, and to take care of it for her; that she did not remember seeing it after he gave it to her on the date referred to, until the 26th of August, 1877, when she gave it to Judge Grant, her attorney, with some other papers and her will, to take care of in her absence; that she was extremely busy preparing for the wedding, and for that reason did not remember the details; that she was positive she saw the deed at that time. Her husband testifies that on the 12th or 13th of December, 1876, “I gave her the deed, saying to her, ‘there is the deed of the house on Thirty-ninth street, which I have conveyed to you in accordance with my promise and the conditions we have talked of,’ or words to that effect,” and the testimony shows that he was to convey to her this property if she would marry him. This evidence most assuredly is clear and distinct, and if entitled to belief, proves that the deed was delivered. The evidence is not contradicted. It is not improbable or unreasonable. It is consistent, and bears no marks that should condemn it as untrue. It occurred as we would naturally...