Walter v. Way

• Citation: 48 N.E. 421,170 Ill. 96
• Parties: WALTER v. WAY et al.
• Decision Date: 08 November 1897
• Court: Supreme Court of Illinois

170 Ill. 96

48 N.E. 421

WALTER

v.WAY et al.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from circuit court, Cook county; M. F. Tuley, Judge.

Bill by Joseph Walter against Matilda Way and others. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Elmer Dewitt Brothers (Luther Laflin Mills, of counsel), for appellant.

H. H. Talcott, for appellees.

MAGRUDER, J.

This is a bill, which, as originally drawn and subsequently amended, was filed by the appellant, Joseph Walter, against the appellees, Matilda Way and others, for the purpose of establishing in appellant the ownership of two lots in the village of Desplaines, in Cook county. The appellees are the brothers and sisters and nephews and nieces of one Christopher Haverly, for many years a resident of said village of Desplaines. Christopher Haverly died at Desplaines, at the age of about 71 years, on April 8, 1893, unmarried and intestate, and leaving the appellees as his only heirs at law. He kept a livery stable, which was situated upon the premises owned by him. There was also a house upon said premises, in which he sometimes lived. At the time of his death, the premises were rented to one Winchell. On June 3, 1890, Christopher Haverly made a deed of the lots in question to the appellant, Joseph Walter. Joseph Walter was a harness maker, living in the village near the premises of Christopher Haverly. The appellant was an intimate friend of the deceased, Haverly, and Haverly entertained for him a high degree of regard and affection. During the last year or year and a half of Haverly's life, he lived in some rooms over the harness shop of the appellant.

The appellant claims to be the owner of the lots in question by virtue of the deed so executed by Haverly on June 3, 1890. The appellees claim to be the owners as heirs of Haverly, and countend that the deed executed to the appellant was never delivered to the grantee therein, and therefore never took effect as a valid conveyance. The only question in the case is whether or not there was a delivery of the deed to the appellant. The circuit court, before whom the cause was heard, found that there was no delivery of the deed, and dismissed the bill for want of equity. The question as to what constitutes the delivery of a deed has often been passed upon by this court. A delivery is necessary to render a deed operative. It has been held that no particular form or ceremony is required to constitute a sufficient delivery. It has also been said that a delivery may be by acts or words, or by both, or by one without the other. But it is well settled that several things are necessary to constitute a valid or effective delivery of a deed. One of the essential requisites of a sufficient delivery is that the deed passed beyond the dominion and control of the grantor. Another requisite is the intention of the grantor, and of the person to whom the deed is delivered, that it shall presently become operative and effectual. The essence of delivery is the intention of the parties. In order to make the delivery valid, it must be manifest that the grantor intended the grantee to become possessed of the estate. It is not essential in all cases that the deed should be delivered into the actual possession of the grantee. It may be delivered to a third person for the benefit of the grantee. When the delivery is to a stranger for the benefit of the grantee, it must be absolute in order to be good. If a future control by the grantor is retained over the deed, no estate passes. When it is accepted by the beneficiary, the delivery is as good when made to a third person for his benefit as though made directly to him. When a grantor makes a deed, and delivers it to a third person to hold until his death, and then to deliver it to grantee, and parts with all control over it, and reserves no right to recall the deed or alter its provisions, the delivery in such case will be effective, and the grantee, on the death of the grantor, will succeed to the title. Although the delivery of the deed to such third person, to be retained until the death of the grantor, and then to be delivered to the grantee, is not an absolute delivery, so as to vest an immediate estate in the land, yet it will be good to pass the title at the grantor's death to the grantee or his heirs. Bryan v. Wash, 2 Gilm. 557; Byars v. Spencer, 101 Ill. 429;Cline v. Jones, 111 Ill. 563;Provart v. Harris, 150 Ill. 40, 36 N. E. 958;Stinson v. Anderson, 96 Ill. 373;Stone v. Duvall, 77 Ill. 475; 2 Devl. Deeds, §§ 262, 280.

The amended and supplemental bill in this case alleges that the deed was delivered by Christopher Haverly to one Thomas Luce, as the agent for appellant. Upon looking into the record, we are unable to find any such facts as, in our opinion, constitute a delivery of the deed to Luce, either as the agent of the appellant to receive the deed, or as the agent of Haverly to deliver the deed to appellant. On the night of April 8, 1893, in one of the rooms above appellant's harness shop, Haverly was very sick, and Luce was present with him. Luce says he was satisfied that Haverly was going to die, and so told him. Luce then asked the deceased if he had any papers to fix up, or if there was anything he wanted done, and told him that it would be better for him to do what he had to do at once. The deceased replied as follows: ‘When I went down East, I had all my papers fixed up before I went. I deeded those-that lot and barn and the house and lot-to Joseph Walter. I made another paper disposing of my personal property. Mr. Senne made them.’ Luce told him to send for Senne. He said to Luce that he wanted the paper in reference to his personal property changed. Luce told him that he ought to do it at once, on that night. The deceased replied: ‘Oh, pshaw! Wait until morning.’ Luce told him that he might not live until morning, and asked him where the papers were. The deceased replied: ‘They are in the other room, in that tin box. It was a bread box, and there is a bread box sitting on top of it. It is there.’ The other room referred to was the kitchen, in which the deceased was in the habit of cooking his meals, and adjoined the bedroom in which he was sick. Luce asked him if Walter knew anything about the deed. He replied: ‘Yes; he knows all about it.’ Luce asked him if the deed was on record. He said: ‘No; all he (Walter) has got to do with it is to take it and put it on record.’ While he and Luce were talking, the appellant and Winchell came into the room. Just before they entered the room, the deceased protested against sending for Mr. Senne that night, and said: ‘I don't want Winchell to know anything about this business at all. Don't get the man Senne out of bed in the middle of the night. We can do that to-morrow.’ Appellant and Winchell, after a few moments, went downstairs. Thereupon the deceased proposed to fix up the matter the next day, and said that he would on the next day sell his horse and road cart for what he could get for them. He also said: ‘I don't want anybody to say anything about it. When I am gone, that is the end of it. I don't want anybody to know the papers are made at all.’ Luce asked him what he wanted him (Luce) to do with those papers, and he answered: ‘I want you to take care of those papers.’ When Luce asked him if he should take them home with him, he said: ‘I want you to take care of them, so that they will not be destroyed.’ The deceased said: The deed ‘is in a bread box, a tin box sitting in the kitchen, with another box on top of it. The deed is there for Joe.’ Luce had not seen the deed, and did not know where it was, or where the box was which contained it. Haverly died that night, and, after his death, Luce asked the appellant if he knew where the box was, and the appellant replied that the deceased had told him all about the box. Luce then took the box, and subsequently delivered it to the probate court.

The foregoing is substantially all the testimony which connects Luce in any way with the transaction. It is evident that there was no delivery of the deed to Luce for the benefit of the appellant. The deceased merely informed Luce that the deed was in the box in the adjoining room for the appellant, and that appellant, not Luce, could take it and record it. There was no direction to Luce to take it and record it, but simply a statement that, after the death of Haverly, the appellant could take it and record it. The evidence shows that, for more than a year prior to the death of Haverly, the deed was in his possession in the tin box in the rooms occupied by himself. During all this time it did not pass out of his...