Stevens v. Stevens

• Decision Date: 05 December 1912
• Citation: 256 Ill. 140,99 N.E. 917
• Parties: STEVENS v. STEVENS et al.
• Court: Illinois Supreme Court

256 Ill. 140

99 N.E. 917

STEVENS

v.STEVENS et al.

Supreme Court of Illinois.

Oct. 26, 1912.

Rehearing Denied Dec. 5, 1912.

Appeal from Circuit Court, Montgomery County; Thomas M. Jett, Judge.

Bill in equity by Corda Frame Stevens against Elizabeth A. Stevens and others. From the decree, complainant appeals. Reversed and remanded.

Harry L. Ballard, of Litchfield, for appellant.

Hill & Bullington, Lane & Cooper, and Miller & McDavid, all of Hillsboro, and Paul McWilliams, guardian ad litem, of Litchfield, for appellees.

COOKE, J.

This bill was filed by Corda Frame Stevens, the appellant, in the circuit court of Montgomery county, for the partition of 597 acres of land in Montgomery and Bond counties and some town lots in Bond county, of which the bill alleges John S. Stevens, the grandfather of appellant, died seised. The court by its decree found that the said lands had been conveyed by Stevens during his lifetime, except 60 acres which had been omitted from certain of the deeds by mistake of the scrivener. Partition of this 60 acres was ordered, and the bill was dismissed as to the remaining lands. From that decree this appeal has been prosecuted.

John S. Stevens died February 19, 1911, leaving surviving him Elizabeth A. Stevens, his widow; Mary C. Brooks, Permelia J. Root, Eliza A. Brooks, and Sarah E. McPherson, his daughters; John A. and Commodore C. Stevens, his sons; Mina B. and Edward S. Armstrong, minor children of a deceased daughter; William S., Royal R., and Arthur Stevens, children of a deceased son; and Corda Frame Stevens, the appellant, child of a deceased daughter, as his only heirs. On January 24, 1901, Stevens and his wife executed a deed to William E. Brown, a son of Mrs. Stevens by a former husband, conveying to him 70 acres of land for the period of his natural life and the remainder to the children of John S. Stevens living at the date of the deed, their heirs and assigns. This deed was not delivered to any of the grantees therein named during the lifetime of the grantor, but, together with the deeds hereinafter mentioned, was thereafter placed in the private box of the grantor in the bank at Donnellson. On January[256 Ill. 142]23, 1904, Stevens and his wife executed warranty deeds conveying portions of his real estate to his four daughters, two sons, and the grandchildren William S., Royal R., and Arthur Stevens, and Stevens alone executed a deed to his wife conveying the town lots to her for her lifetime with the remainder to his children and their bodily heirs. Each of said deeds, except the one to Elizabeth A. Stevens, contained a reservation of some interest during the lifetime of the grantors; some of them providing for one-third of the annual product and others for life estates in the whole of the tracts conveyed. At the time he executed the deeds, in 1904, he also executed his last will and testament, whereby he made bequests of personal property to certain of his children and grandchildren and bequeathed to his wife a life interest in the remainder of the personal property, together with the rents provided for her from ‘certain lots of land which I have deeded to my sons.’ The clause of the will appointing the executors also contains this statement: ‘Having disposed of all my real estate this day to my heirs, dividing the same among them by warranty deeds as best I could.’ The will and the deeds were drawn by William J. Young and were executed at the home of the scrivener, no one being present, besides the grantors, except Young, his wife, and James E. Price, a witness to the will. Yound died prior to the hearing of this cause. C. C. Mansfield, a banker at Donnellson, where Stevens resided, testified that after these deeds were executed Stevens came into his bank and offered him a sealed envelope, stating that it contained papers which William J. Young said would not be binding unless they were given to a third party to hold. Mansfield thereupon said to him: ‘You have a box here in the building. Why not place them in that?’ Then, after some further conversation, Stevens went into the vault and got his box. Mansfield then testified that the envelope, or the papers contained therein, were not in his hands at any time during Stevens' lifetime and that he did not have a key to Stevens' box. After the death of Stevens the widow and certain of the children came to the bank and in the presence of Mansfield opened the box and examined its contents. Then for the first time Mansfield took actual possession of the deeds and distributed them to the various grantees, except the deed to William E. Brown, who at that time refused to accept it. On the envelope in which the deeds were contained was the following indorsement in the handwriting of William J. Young: ‘Warranty deeds made by John S. Stevens and Elizabeth A. Stevens, to be kept by C. C. Mansfield, of Donnellson, Ill., as a third party. Said deeds made to his or their heirs, and to be turned over to said heirs by the said C. C. Mansfield or his legal representatives after the death of the said John S. Stevens, subject, however, to his call at any time before his death.’ Neither the appellant nor the Armstrong children were named as grantees in any of these deeds. By the will appellant was bequeathed two notes of her father and mother, aggregating $400, and $150 in cash. During his lifetime John S. Stevens repeatedly stated that he had deeded his lands to his children and certain of his grandchildren, and that he had done so to enable them to make such improvements upon them as they might desire. He made the same statements in reference to his stepson. On the other hand, after the execution of the will and of the deeds he continued to lease his lands to his children and others by written leases, which provided for the delivery of possession at the termination of the leases. He paid the taxes, executed oil leases to certain of the lands, and sold the coal thereunder.

[1][2] The principal question to be determined is whether there was a ‘delivery’ of the deeds by Stevens in his lifetime. A delivery is essential to the validity of a deed, and the law is so well settled as to what constitutes delivery that an extended discussion of the question or the citation of authorities should not be necessary. To make delivery of a deed the grantor must part with all dominion, power, and control over it and must retain no right to reclaim or recall it. Among the many cases in this state in which this doctrine has been stated are Stinson v. Anderson, 96 Ill. 373;Weaver v. Weaver, 182 Ill. 287, 55 N. E. 338,74 Am. St. Rep. 173;Hawes v. Hawes, 177 Ill. 409, 53 N. E. 78;Munro v. Bowles, 187 Ill. 346, 58 N. E. 331,54 L. R. A. 865;Taylor v. Seiter, 199 Ill. 555, 65 N. E. 433;Lange v. Cullinan, 205 Ill. 365, 68 N. E. 934;Spacy v. Ritter, 214 Ill. 266, 73 N. E. 447;Noble v. Tipton, 219 Ill. 182, 76 N. E. 151,3 L. R. A. (N. S.) 645.

[3] The question whether a deed has been delivered is one of fact, and the finding of the chancellor thereon, based on proof which is contradictory, will not be disturbed unless the evidence discloses that it is palpably wrong. But in cases such as this, where the facts bearing on the question of delivery are undisputed, the question presented to this court on review is whether the chancellor has properly applied the law to the facts.

[4] Where the grantor places deeds in the hands of a third party, together with a written memorandum expressly retaining the right to recall them at any time, and such deeds are so held until the death of the grantor, there can he no question of a failure to make a valid delivery. The fact that this was a voluntary settlement upon those having a claim upon his bounty, the fact that the grantor repeatedly stated that he had deeded his real estate to his children and grandchildren and that the lands belonged to them, that he stated in his...