Reed v. Douthit

• Decision Date: 31 January 1872
• Citation: 62 Ill. 348,1872 WL 8049
• Parties: JOHN O. REED et al.v.ANDREW E. DOUTHIT et al.
• Court: Illinois Supreme Court

62 Ill. 348

1872 WL 8049 (Ill.)

JOHN O. REED et al.

v.ANDREW E. DOUTHIT et al.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Shelby County; the Hon. ARTHUR J. GALLAGHER, Judge, presiding.

Messrs. MOULTON & CHAFFEE, for the plaintiffs in error.

Messrs. HENRY, HALL & WENDLING, for the defendants in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery in the Shelby circuit court brought by the descendants of John Douthit, deceased, who died intestate, for a partition of the lands of which their said ancestor died seized, and to which bill Andrew E. Douthit, Nancy Stewartson, and William H. Douthit, children of John Douthit, and Matilda Douthit, widow of John Douthit, were made defendants. William H. and Matilda Douthit made separate answers, William denying that his father, John Douthit, died seized of the north-west quarter of the south-east quarter, and north-east quarter of the south-west quarter of section thirteen (13) and south-east quarter of the south-east quarter of section two (2) in township eleven (11) north, range four (4) east, of which partition was claimed by the bill of complaint, but that the same was sold and conveyed to him by John Douthit and Matilda, his wife, and that he was put in possession, and made valuable improvements thereon. These lands, it appears, composed the “Home Farm,” so called, or a part of it. Matilda Douthit was the widow of John Douthit, his wife by a second marriage, to whom there was born an only child, the defendant William. Matilda, in her answer, denied that John, her husband, owned these lands, and she claimed no dower in them. Replications were put in and the cause set for hearing, on bill, answers, replications, and proofs. Much testimony was taken, and the court excepted from the decree of partition the above described lands, holding the same were the exclusive property of William H. Douthit in virtue of his father's deed.

The point made here by plaintiffs in error, and it is the only one, was there a delivery of the deed from John Douthit and wife to William H., under which he claims title?

The deed was executed and acknowledged November 25, 1868, and filed for record on the 9th of February, 1870, about sixteen months after the death of John Douthit, he dying about the close of the year 1868. William, at the date of the deed, was about seventeen years of age, and the only child of his parents living with them.

There is no proof of an actual delivery of this deed by the grantor to the grantee, but it was in the possession of the grantee after the death of his father, and by him placed on record.

It is claimed by plaintiffs in error that it is incumbent on a grantee who is in possession of a deed, to show affirmatively, a delivery.

We do not understand the law so to hold. The requisites of a deed to convey land, are, signing, sealing, and delivery. When a deed is produced by the grantee named therein, what are the presumptions of law? They are, that the deed was signed and sealed according to its purport, and the grantee named in it, having it in his possession, is presumed to have received it from the grantor. In the absence of all fraud in the case, and none is charged or shown in this case, this presumption must obtain and must prevail, unless rebutted by some strong facts in evidence. The formal act of signing, sealing, and delivery is the consummation of the deed, and the burden is always on the grantor to prove clearly that the appearances are not consistent with the truth. The presumption is against him, and the task is upon him to destroy that presumption, by clear and positive proof, that there never was a delivery. Sowerby v. Arden, 1 Johns. Ch. 239; Chandler v. Temple, 4 Cushing, 285. The magistrate who took the acknowledgment of this deed testifies that he had a conversation with John Douthit, the grantor, before he took the acknowledgment, in which Douthit said he had given his older children as much as he could afford, and wanted him to take the acknowledgment of a deed to William. He said he was getting old and wanted to make this deed to William, so that there would be no trouble about it afterward. He said he calculated the property he got of William's mother to be for him; and he heard him say, at different times, after the deed was acknowledged, that the farm belonged to William, but that he expected to live on it the balance of his days.

On the cross-examination of James Patterson, a witness for defendants in error, he testified that when talking about this land, he understood William to say his father had made him a deed, and this was said in the lifetime of John Douthit. This declaration of William was called out by the...