Potter v. Barringer

• Decision Date: 26 October 1908
• Citation: 236 Ill. 224,86 N.E. 233
• Parties: POTTER v. BARRINGER.
• Court: Illinois Supreme Court

236 Ill. 224

86 N.E. 233

POTTER

v.BARRINGER.

Supreme Court of Illinois.

Oct. 26, 1908.

Appeal from Circuit Court, Montgomery County; S. L. Dwight, Judge.

Suit by Mary A. Potter against Mattie J. McDavid Barringer. Decree for defendant. Complainant appeals. Affirmed.L. V. Hill and Thomas M. Jett, for appellant.

Amos Miller and George R. Cooper, for appellee.

This is an appeal from a decree entered by the circuit court of Montgomery county, dismissing, for want of equity, a bill filed by appellant, Mary A. Potter, against appellee, Mattie J. McDavid Barrmger, for the cancellation of a deed and to quiet title to certain land in that county. Mary A. McDavid was at one time the owner of the land in question. Her husband was James B. McDavid, and they had one son, William, who was evidently an able and likable young man, but was somewhat dissipated. William married the appellee, whose maiden name was Mattie Wilson, and who had inherited from her father some 600 acres of land. This property, the evidence shows, she had lost, before the time of the transactions now in question, by indorsing notes with her husband and his father. William McDavid, Appellee's first husband, died in the spring of 1903, his father dying before that date. Mary McDavid and appellee for some time leased and ran a hotel at Hillsboro, the furnishings of the hotel being largely the property of the former. Appellee seems to have transacted most of the business in connection with running the hotel, Mary McDavid making her home there. The deed which is here sought to be set aside is dated November 2, 1903, and is a statutory warranty deed, without any conditions on its face, signed and acknowledged by Mary McDavid, conveying to Mattie J. McDavid the house and lots in Hillsboro and 120 acres of the farm land included in the deed of trust. The acknowledgment was taken November 2, 1903, by James B. Barringer, notary public, who was then, and had been for some 25 years, cashier of a bank at Hillsboro. In October, 1904, he married Mattie J. McDavid, but there is nothing in the record to show that this marriage was anticipated at the time the acknowledgment was taken.

The testimony in reference to the execution and delivery of this deed is substantially as follows: Judge Lane, who had practiced law in Hillsboro about 44 years, testified that on November 1, 1903, Mary McDavid came to his office and told him that Mattie was about to go to St. Louis as a housekeeper, and she (Mrs. McDavid) did not want her to do this; that Mattie had lost her fortune, and that she (Mary McDavid) wanted to make a straght deed to Mattie to the house and lots and 120 acres of the farm land; that he made pencil notations of what she wanted, but as it was nearly evening the matter was put off until the next morning; that on the following morning, not wishing to write the deed with a pen, and there being no one then in the office who could operate the typewriter, he took the paper containing the description down to the bank, and Frank McDavid, at his request, wrote the deed on the typewriter; that he (the witness) then took the deed up to the hotel, and gave it to Mary McDavid, and asked her to take it to the bank and sign and acknowledge it before Mr. Barringer; that as she did not return for some time he went to look for her, and met her coming back with the paper in her hand, signed and acknowledged; that at her request he returned to the hotel, and they found Mrs. Mattie J. McDavid, and he said to her, in the presence of Mary McDavid: ‘Mattie, your mother-in-law wants to convey this deed to you. She wants to reserve a life interest in this land-the rents and profits, and all that kind of thing-and this deed is not to be put on record until she dies, and she wants you to stay here. Are you willing to accept this deed on that condition?’ He stated that Mattie said she was, and he thereupon handed the deed to her and came out; that he gave it directly into her hands, under the direction and in the presence of Mary McDavid, who was standing by and approved all that was said, and who made the remark that she did not want to see Mattie working as a hired woman for anybody. Frank McDavid, assistant cashier of the bank, testified that he was a nephew of Mary McDavid, and at Judge Lane's request wrote the deed in question on the typewriter; that she came to the bank and signed and acknowledged it before Mr. Barringer, and that he (McDavid) signed as a witness; tha he saw the deed a number of times after that, in the bank, among the papers of appellee. Joel McDavid, president of the bank, testified that he saw the deed in question several times in a small bundle of papers belonging to appellee which were deposited by her for safekeeping in the bank.

During the time Mary McDavid and her daughter-in-law were living together at the hotel, they were evidently on fairly good terms, with perhaps occasional disagreements. In July, 1904, they sold their interest in the hotel, and some time thereafter Mary McDavid went to live at the Barringer residence. In October, 1904, as has heretofore been stated, Mattie J. McDavid married Barringer. Mary McDavid was not pleased with this, and she and her daughter-in-law seem to have become much more estranged after the marriage than before. Shortly before the marriage Mary McDavid went to live at Shoemaker's, and remained there until March, 1905, when she moved to her own home, and appellant, Mary A. Potter, her niece, came there to live and remained with her until her death. Mary McDavid continued to treat the land as if she was the owner. In March, 1906, she renewed a mortgage on the farm for $1,700, taking up one given in 1902, which had become due. In August, 1907, she sold a coal option for the underlying mineral on the farm for about $1,200, James Barringer, the husband of appellee, assisting her in this transaction. June 8, 1907, she made her will. She was then 79 years old. The will contained some personal bequests, and some provisions for cemetery lots, amounting to about $1,200. It also stated: ‘I give and bequeath to Mattie J. McDavid Barringer and James B. Barringer each the sum of one dollar, and nothing more.’ It also gave the daughter of her grandson her house and lots in Hillsboro, subject to the payment of the personal and cemetery bequests above mentioned. It also gave Mary A. Potter, appellant, in ‘consideration of her kind treatment and care’ during the later years of testatrix's life, all of her household and kitchen furniture and personal property not otherwise bequeathed, and the 120 acres of land in question in this proceeding, on condition of her paying the mortgage indebtedness thereon and $250 to a certain church. The will was filed for probate October 7, 1907, and on the same date the deed in question was filed. This bill was filed January 8, 1908.

CARTER, J. (after stating the facts as above).

Appellant insists that the testimony of witness Lane was inadmissible as privileged communications given him as an attorney. Even if this testimony be not competent, we think other competent evidence in the record upholds the finding of the chancellor that the deed in question had actually been delivered. Where a deed duly executed is found in the hands of the grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome this presumption. Blake v. Ogden, 223 Ill. 204, 79 N. E. 68;Tunison v. Chamblin, 88 Ill. 378. This deed was in the possession of the appellee previous to the death of Mary McDavid, as is shown clearly by the testimony of the two McDavids, and the proof shows, without controversy, that it was in appellee's possession after Mary McDavid's death. On this record there is no dispute as to the fact that the deed was duly signed and acknowledged by the grantor.

Appellant seemingly contends that the deed is not genuine, or if it is genuine, that it was canceled, because Mary McDavid made the statement that appellee did not have any papers signed by...