Union Mut. Life Ins. Co. v. Campbell

• Decision Date: 18 May 1880
• Citation: 35 Am.Rep. 166,1880 WL 10034,95 Ill. 267
• Parties: UNION MUTUAL LIFE INSURANCE COMPANY et al.v.ALEXANDER B. CAMPBELL.
• Court: Illinois Supreme Court

95 Ill. 267

1880 WL 10034 (Ill.)

35 Am.Rep. 166

UNION MUTUAL LIFE INSURANCE COMPANY et al.

v.ALEXANDER B. CAMPBELL.

Supreme Court of Illinois.

Filed at Ottawa May 18, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding.

On the 15th of September, 1864, Alexander Campbell and Charlotte C. Campbell, his wife, signed and properly acknowledged a deed conveying the property in controversy to one Alexander McEwen. The consideration expressed in the deed was $3000, but, in fact, no consideration was paid or contracted, the execution of the deed being purely voluntary. It appears that at and prior to the signing and acknowledging of this instrument, Campbell, though not, probably, largely indebted, was involved in a partnership, in regard to the successful termination of which he had serious apprehensions; that he was unwell, and was anticipating the birth of complainant, which occurred shortly afterward, and morbidly distressed lest he would be unprovided for, and anxious to put his property where it would be safe for his family; that McEwen was an intimate friend of his; that the deed was left at the recorder's office and recorded, but that McEwen did not know that such a deed had been made, or recorded, until after Campbell's death, which occurred July 26, 1866, when he was informed thereof by the widow, said Charlotte C. Campbell, and he thereafter found the deed in the recorder's office. At the request of said Charlotte C. Campbell, on the 30th of January, 1867, McEwen conveyed the property to her without any consideration. In the month of May, 1868, Charlotte C. Campbell made a trust deed on the property to Levi D. Boone, to secure the payment of $4000 to the Union Mutual Life Insurance Company of Maine; and on the 15th day of April, 1873, said Charlotte made another trust deed on the property to said Boone to secure the said insurance company in the sum of $14,000.

Complainant, Alexander B. Campbell, a minor,--being born on the 25th of April, 1865,--by his next friend, filed his bill on the equity side of the Cook circuit court, against the Union Mutual Life Insurance Company of Maine, Levi D. Boone, its agent, and Charlotte C. Campbell, his mother, to establish a trust in the property in controversy, on the ground that the conveyance by Alexander Campbell to McEwen was in trust for his heirs at law. Subsequently, by leave of court, the bill was amended, alleging that the deed of Alexander Campbell was never delivered to or accepted by McEwen, and praying that the same be declared void, and removed as a cloud upon complainant's title. The Union Mutual Life Insurance Company of Maine filed a cross-bill praying for a sale of the property to satisfy the amount due on its deed of trust.

Answers (not under oath) were filed to the original and amended bills and cross-bill, and also replications thereto; and the cause was heard on pleadings and proofs, and the court thereupon found that McEwen paid no consideration for the deed from Alexander Campbell, and that the same was never delivered to him.

And thereupon the solicitor for the complainant asked the court to decree as follows: “That the appellee was entitled to the buildings on the premises; that the appellants should account for all the rents and profits of the estate by them received; that the master should state the account as to the value of the buildings, and the amount of rents received by the appellants, and that appellee should have the right to elect, after the master's report came in, whether he would take the buildings and pay for them any balance there might be above the rents received.”

But this the court refused, and decreed as follows:

“It is ordered that said deed is invalid, and that no estate in said premises passed thereby to Alexander McEwen. That on the death of Alexander Campbell the title to said premises in fee simple descended to the said complainant as the heir at law of said Alexander Campbell, subject to the dower of the said Charlotte C. Campbell.

It also appearing that Alexander McEwen did, on the 30th day of January, 1867, execute a deed attempting to convey said premises to Charlotte C. Campbell, it is ordered that no estate in said premises passed thereby to said Charlotte C. Campbell.

It also appearing that Charlotte C. Campbell, on the 15th day of April, 1873, executed a deed of trust of the same premises to Levi D. Boone for the benefit of the Union Mutual Life Insurance Company, it is ordered that no interest or estate against the title of complainant passed to Levi D. Boone.

It is also ordered that the deed from Alexander Campbell to McEwen, and the deed from McEwen to Charlotte C. Campbell, and the trust deed from Charlotte C. Campbell to Levi D. Boone, are clouds upon complainant's title, and as to him they are canceled and annulled.

It further appearing, however, that the said Charlotte C. Campbell did, in good faith, relying on the validity of her aforesaid title to the said premises, erect sundry buildings on the said premises, and that the said Union Mutual Life Insurance Company of Maine, further relying on the title of the said Charlotte C. Campbell, did loan her money on the security of said premises, as set forth and alleged in the cross-bill of the said defendant, and that there is now actually due from the said Charlotte C. Campbell to the said Union Mutual Life Insurance Company of Maine, on account of such loan, $____.

It is further ordered that the complainant shall account to the Union Mutual Life Insurance Company of Maine for the cash value of the permanent improvements on the said premises at the time of filing the bill herein, and that in such accounting the complainant shall be allowed as an off-set two-thirds of the mesne profits or rental of said real estate, exclusive of the improvements since the defendants or any of them began to receive the rents therefrom, deducting from such rents two-thirds of the taxes assessed on said land without the improvements, and a further sum equal to so much of the rents and profits that have been expended in the maintenance and education of the complainant.

Referred to a master to take the account, and that if it shall appear that any balance is due the Union Mutual Life Insurance Company, the same shall be paid by complainant within six months, and that on the payment of such balance said buildings shall become the property of complainant. That the cross-bill be dismissed.”

The case comes here upon the appeal of the Union Mutual Life Insurance Company of Maine and Levi D. Boone, who have assigned for error:

1. That the court erred in dismissing the cross-bill.

2. That the court erred in granting the prayer of the original bill.

3. That the court erred in finding there was no delivery of the deed from Alexander Campbell to Alexander McEwen.

4. That the decree is not sustained by the evidence.

And, Alexander Campbell, appellee, by his next friend, assigns for cross-errors:

1. That the court below erred in refusing the appellee the decree, in substance, as prayed for and set out in the record.

2. That the court below erred in not allowing appellee to retain the improvements upon the premises in controversy as his own property.

3. The court erred in not allowing the appellee to recover from the appellants all of the mesne profits of the premises received by the appellants.

4. The court erred in not allowing the appellee the right to elect whether to take the improvements up to the coming in of the master's report. Messrs. KENDALL & BLISS, for the appellants:

In this case all the presumptions are in favor of the validity of the deed from Campbell to McEwen.

The deed was found in the possession of the grantee.

“Where a deed, duly executed, is found in the hands of the grantee, there is a strong implication that it was delivered.” Tunison v. Chamblin, 88 Ill. 387; Warren v. Town of Jackson, 15 Ill. 241; Peavey v. Shelton, 18 N. H. 152.

And this presumption can be overcome only by clear and convincing evidence.

The onus probandi is upon the one who denies the delivery.

And if his proofs are contradicted by other proofs, so as to leave the matter in doubt, that doubt may be considered in favor of the delivery of the deed. Carnes v. Platt, 41 N. Y. S. Ct. 435; Warren v. Town of Jackson, 15 Ill. 241.

The deed was of a beneficial character, and therefore acceptance is presumed. Rivard v. Walker, 39 Ill. 415; Church v. Gilman, 15 Wend. 656; Steward v. Weed, 11 Ind. 92; Marbury v. Brook, 11 Wheat. 556.

The deed was recorded by the grantor. Lessee of Mitchell v. Ryan, 3 Ohio St. 380; Snyder v. Lackenour, 2 Ired. Eq. (N. C.) 360.

Approved in Ellington v. Currie, 5 Ired. Eq. 21; Hoffman v. Mackall, 5 Ohio St. 124; Himes v. Keightlinger, 14 Ill. 469; Bulkley v. Buffington, 5 McLean, 457; Mallet v. Page, 8 Ind. 364; Cecil v. Beaver, 28 Ia. 241.

From acknowledgment. Bunsley v. Atwill, 12 Cal. 231; Snyder v. Lackenour, 2 Ired. Eq. 360; Doe v. Knight, 5 Barn. & Cress. 671.

And this, too, although the grantor retain the deed in his possession.

The acknowledgment of a deed is a judicial act; and it is conclusive of the facts certified to, in the absence of fraud. Hecter v. Glasgow,79 Pa. St. 79; Hill v. Bacon, 43 Ill. 477.

In Xenon v. Wickham, 2 House of Lords, L. R. 17, 578, where a policy of insurance was expressed to be “signed, sealed and delivered,” it was taken as conclusive against the company that it was signed, sealed and delivered, although the company retained possession of it.

But although this presumption, raised by the acknowledgment, may be rebutted, it can not be by the testimony of one witness. Crane v. Crane, 81 Ill. 165; Marston v. Brettenham, 76 Id. 611; Kerr v. Russell, 69 Id. 666; Spurgin v. Troub, 65 Id. 170.

It is presumed the deed was delivered on the day of its date.

And this must stand till the contrary is proved. Blake v. Fash, 44 Ill. 302; Deininger v. McConnell, 41 Id. 231; Jayne v. Gregg, 42 Id....