Weber v. Christen

• Decision Date: 01 March 1887
• Citation: 121 Ill. 91,11 N.E. 893
• Parties: WEBER and another v. CHRISTEN and others.
• Court: Illinois Supreme Court

121 Ill. 91

11 N.E. 893

WEBER and another

v.CHRISTEN and others.

Supreme Court of Illinois.

March 1, 1887.

Appeal from superior court, Cook county.

Action of ejectment. The opinion states the facts. Judgment for defendants. Plaintiffs appeal.

A voluntary conveyance in fraud of creditors is good between the parties. It binds the grantor and those in priority with him. Lowry v. Orr, 1 Gilman, 85;Choteau v. Jones, 11 Ill. 318;Cassell v. Williams, 12 Ill. 390;Waggoner v. Cooley, 17 Ill. 239;Getzler v. Saroni, 18 Ill. 518;Ward v. Enders, 29 Ill. 519;Horner v. Zimmerman, 45 Ill. 22;Howell v. Edmonds, 47 Ill. 86;Fitzgerald v. Forristal, 48 Ill. 228;Upton v. Craig, 57 Ill. 257;Harmon v. Harmon, 63 Ill. 512;Campbell v. Whitson, 68 Ill. 240; Bump, Fraud. Conv. (2d Ed.) 437.

In case of a voluntary settlement the delivery of the deed is presumed. Souverbye v. Arden, 1 Johns. Ch. 256;Bryan v. Wash, 2 Gilman, 568;Walker v. Walker, 42 Ill. 312;Reed v. Douthit, 62 Ill. 348.

Where a deed is recorded by the grantor, with the consent of the grantee, it is a good delivery. Lessee of Mitchell v. Ryan, 3 Ohio St. 377;Cecil v. Beaver, 28 Iowa, 246; Snyder v. Lackenour, 2 Ired. Eq. 360;Ellington v. Currie, 5 Ired. Eq. 23;Hoffman v. Mackall, 5 Ohio St. 130. In one of the cases last cited the court held that, where a grantor signs and acknowledges a deed, and orders it to be recorded, it is conclusive proof of a delivery. Snyder v. Lackenour, 2 Ired. Eq. 360. Other courts have held that the simple recording of a deed is prima facie evidence of a delivery. Himes v. Keighblingher, 14 Ill. 469;Mallett v. Page, 8 Ind. 367. By causing the deeds to be recorded in accordance with our statute regulating conveyances, the grantor notified the world that he had transferred the property to the grantee. In Rivard v. Walker, 39 Ill. 415, this court says: ‘By directing the deed to be recorded, and by its record, he (grantor) gave to the public the most solemn assurances in his power that he had transferred his title to his children, and he cannot be permitted to resume it at pleasure because he may have afterwards inclined to regret his act.’

Where the deed is of a beneficial character to the grantee, its acceptance by him will be presumed. Rivard v. Walker, 39 Ill. 413.

In quite a number of cases it has been held that if, in a voluntary settlement, the possession of the deed remains with the grantor until his death, it does not invalidate the deed. Reed v. Douthit, 62 Ill. 348;Villers v. Beaumont, 1 Vern. 100; Bale v. Newton, Id. 464; Clavering v. Clavering, 2 Vern. 475; Souverbye v. Arden, 1 Johns. Ch. 240;Bunn v. Winthrop, Id. 329; Boughton v. Boughton, 1 Atk. 625. The law presumes much more in favor of the delivery of deeds, in the case of voluntary settlements, especially when made to infants, than it does in cases between parties of full age, or in ordinary cases of bargain and sale. Bryan v. Wash, 2 Gilman, 568;Masterson v. Cheek, 23 Ill. 72;Rivard v. Walker, 39 Ill. 415;Reed v. Douthit, 62 Ill. 348. It has been held that it is not necessary that the grantee should have the deed in his possession, or ever have seen it; if it is delivered to a stranger for his benefit, it is sufficient. Hatch v. Hatch, 9 Mass. 309;Lessee of Shirley v. Ayres, 14 Ohio, 307. In one of the cases the father made a conveyance to his son. The grantor remained in possession of the property till he died; also kept the deed (which had never been recorded) until he died. The son, after his father's death, found the deed among his father's papers, and had it recorded, and this court held that there was a sufficient delivery, and that the title had passed. Reed v. Douthit, 62 Ill. 348.

In a case decided by the supreme court of Iowa, they use the following language: ‘Where the deed to a child is absolute in form, and beneficial in effect, and the grantor and father voluntarily causes the same to be recorded, this is, in law, a sufficient delivery to the infant, and the title to the lands conveyed will pass thereby. In such case, actual manual delivery and a formal acceptance are not necessary.’ Cecil v. Beaver, 28 Iowa, 246. It has been decided that where the grantor to a voluntary conveyance, especially when the grantee is a minor, causes the deed to be recorded, that it will be regarded as an absolute delivery, and that the grantor cannot afterwards direct the recorder not to deliver the deed to any other person; that the grantor has lost the control of the deed. Rivard v. Walker, 39 Ill. 415;Union Mut. Ins. Co. v. Campbell, 95 Ill. 285. In the first of the two cases last cited, the grantor directed the magistrate before whom the deed was executed and acknowledged to have the deed recorder. The grantee was a minor. Afterwards the grantor went to the recorder, paid the fee for recording the deed, and told him not to deliver the deed to any one but himself; and yet this court held that the delivery was complete, and that the grantor had lost control over the deed by having it recorded.

Under the facts and circumstances of this case, it is clear that the mere act of recording the deeds did not of itself amount to a delivery. Herbert v. Herbert, Breese, 354. This case is directly in point, and the doctrine there announced has since been repeatedly reaffirmed by this court in Wiggins v. Lusk, 12 Ill. 132;Kingsbury v. Burnside, 58 Ill. 322;Union Mut. Ins. Co. v. Campbell, 95 Ill. 282. In the last case the court, in addition to the authorities cited in the case in Breese, refer to Hawkes v. Pike, 105 Mass. 560;Derry Bank v. Webster, 44 N. H. 267;Younge v. Guilbeau, 3 Wall. 641. These cases are all in point, and the rule above announced may now be regarded as the settled law.

Joseph Pfirshing, for appellants.

Smith & Forch, for appellees.

MULKEY, J.

The appellants, Herman and Bruno Weber, brought an action of ejectment in the superior court of Cook county against Amalia Christen for the recovery of certain lots and parcels of land, which, it is conceded, formerly belonged to her husband, Ludwig Christen, now deceased. There was a judgment for defendant in the court below, and the plaintiffs appeal to this court.

It appears that Christen and wife, on the fifteenth of January, 1884, executed two deeds, which together purported to convey the premises in question to the plaintiffs, who are nephews of Mrs. Christen, one of whom was at the time a minor. One of the parcels of land constituted the homestead premises of the grantors, but the deed conveying it contained a formal release and waiver of the right of homestead therein. The deeds were properly acknowledged before a notary on the day of their execution, and on the following day were filed for record in the proper office. Having been recorded, they were shortly afterwards taken out of the office by Christen, and were kept by him or his wife until his death, which occurred in March, 1885. After that time she had exclusive possession and control of them, up to the time of the commencement of this suit. Christen left no children or descendants of children. The appellants had no knowledge of the making of the deeds in question, or of the filing of them for record. The father of the grantees testifies, however, that Christen, on a certain occasion, informed them of what he had done, and that they expressed their approval by thanking Christen for it. On the other hand, the evidence tends to show that the real object in making the deeds was to put the property beyond the reach of Christen's creditors. Christen stated to the notary, as the latter testifies, that the deeds were made without consideration, and assigned as a reason therefor that he and his wife had been in trouble, and did not wish to get into any more; that they had had to pay a judgment, and that he was afraid they would have to pay another; that ‘they wanted to convey the property so the courts could not get hold of it.’ When cautioned by the notary, and told that it was dangerous to transfer their property that way, Christen replied ‘that they relied perfectly on their relatives, and they would take all the responsibility of conveying them the property, because it would not hurt them any.’

Assuming this testimony to be true, and there is nothing in the record to the contrary, it is very clear that Christen did not, by the making and recording of these deeds, intend to deprive himself of the property which they purported to convey. His purpose was evidently to make the public record show the title in his wife's nephews without any intention of parting with the property itself, and, by this means, protect it from legal process. The question then arises whether the making and recording of the deeds under the circumstances, and for the purpose stated, had the effect, notwithstanding the grantors purposely retained possession of the deeds, of passing the title to the premises to the grantees. Or, in other words, the question is, do the facts stated show a delivery of the deeds? This is the only question in the case. That a delivery in every case is essential to the operation and validity of a deed is conceded by all; but whether the facts relied on to establish a delivery in a particular case are sufficient for that purpose often presents a difficult question to determine. This results from the fact that the law does not afford any universal test applicable alike to all cases by which the question of delivery may be certainly determined.

The ordinary and simplest mode of delivering a deed is, of course, the actual tradition or manual transfer of the instrument from the grantor to the grantee, for the purpose and with the intention of passing the title from the former to the latter, and of relinquishing all power and control over the instrument itself. But it is well settled that this actual passing of the deed from the hands of one to that of the other is not absolutely essential in any...