McCann v. Atherton

Mr. Chief Justice Scott delivered the opinion of the Court: Originally the hill in this casé was brought by William L. McCann, against Prudence Atherton, who had a life estate ha the premises in question, to prevent waste. After the death of the life tenant a supplemental bill was filed; to which other persons were made parties, praying for a partition of the property. Before a hearing of the case was had, a second supplemental bill was filed by complainant, the object of which was to set aside a deed made by Amos Rutledge to R. F. Dickerson, since deceased, for two-sevenths of the land involved, on the ground the deed had not been delivered to the grantee, except upon conditions that had not been performed. On the hearing of the ease a decree for partition was rendered on the first supplemental bill,—the court finding the interests of the parties to be as therein stated,—and dismissed the second supplemental bill, so far as complainant claimed any interest in the premises under the deed from Amos Rutledge and wife to such lands, as against the heirs of E. F. Dickerson, under a former deed from Amos Eutledge alone. It is the decision of the court dismissing the second supplemental bill of which complaint is made. Complainant, to maintain his bill in that regard, offered Amos Eutledge, his grantor, to prove the deed previously made by him to Dickerson was not delivered to the grantee except on conditions that had not been performed, and hence the deed was not valid; but the court, on objection being made, held the witness was incompetent, and therefore excluded his testimony. That decision is assigned for error. It will be seen the witness was directly interested in the event of the suit. His deed was made to complainant with a view to enable him to maintain the suit for their mutual benefit. Should complainant succeed in setting aside the deed made by witness to Dickerson, the witness would himself, in that event, be entitled to an interest in the land recovered from the heirs of Dickerson. So manifest is the interest of the witness in the result of the suit, it can not reasonably be a matter of dispute. The statute in regard to the competency of witnesses in civil suits provides, in unambiguous terms, that “no person directly interested in the event thereof shall be allowed to testify therein of his own motion or in his own behalf, by virtue of * * * the statute, when any adverse party sues or defends * * * as heir of any deceased person.” That is precisely the case here. The defendants claiming the land under the deed from the witness are the minor heirs of the deceased grantee, and defend in, the capacity of heirs of a deceased person. Adverse to the claim of the witness are the interests of the heirs of Dickerson. Although the witness was called by complainant, still if his testimony should be allowed it would be in support of his direct interest in the property, and against th.e interest of the other defendants, who defend as heirs of his grantee. This is not permissible, under the statute, and is so plain a proposition it needs the citation of no authorities in its support. The deed made by Amos Eutledge to E. F. Dickerson bears date June 8, 1867, was regularly acknowledged on that day, and was recorded in the proper office in the county where the lands are situated, on the 14th day of the same month. At that time it appears the grantor and his wife lived apart, and it is claimed it was agreed the deed was not to take effect unless it should first be signed by the wife of the grantor; that if it was not so signed the grantee was to return it to the grantor, and unless so signed the grantee was under no obligation to pay the price agreed upon as the purchase money. The rule of law on this subject is, that a deed, or any other-sealed instrument, can not be delivered to the grantee or obligee himself as an escrow, to take effect upon a condition not appearing on the face of such deed or other instrument. The delivery must be made to a stranger, otherwise the deed or other instrument becomes absolute at law. Arnold v. Patrick, 6 Paige Ch. 310; Fairbanks v. Metcalf, 8 Mass. 230. But excluding, as must be done, the testimony of Amos Eutledge, there is no satisfactory evidence in the record that the deed to Dickerson was delivered upon any conditions whatever. That which does appear consists mostly of casual statements made by Dickerson to persons having no interest in the land, and could not therefore operate by way of estoppel to prevent the assertion of the truth thereafter by himself, if living, or by his heirs since his death. At most they are incomplete statements concerning the transaction, and were made long after the deed had been recorded. On this subject this court has said, in Tunison v. Chamblin, 88 Ill. 379: “Where a deed duly executed is found in the hands of the grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption.” No such evidence is found in this record. An additional consideration is, the deed in this case was made and delivered by the grantor to the grantee in June, 1867, and it was not until March, 1882, that the supplemental bill in this case was filed to set aside the deed for the causes it is now insisted render it inoperative. Surely, after the lapse of so many years, a deed absolute in form, and duly acknowledged and recorded in the county where the land is situated and where all the parties reside, will not be set aside and annulled except for the clearest and most satisfactory reasons. Casual statements made by the grantor to strangers to the title, and to persons having no interest in the land conveyed, are insufficient to warrant a decree annulling the deed. As respects the irregularities it is insisted there is in the decree as to dower, it is a sufficient answer that if any in fact exist, complainant is not injuriously affected thereby, and he has no just cause for complaint on that score. It will not therefore be necessary to remark on this branch of the case. The decree of the circuit court must be affirmed, which is done. Decree affirmed.