Harshbarger v. Carroll

Mr. Justice Wilkin delivered the opinion of the court: The several grounds of error urged by appellant may be properly considered under two heads, viz.: First, the court below erred in finding that there was a delivery of the deed by appellant to his daughter; and second, in not finding that the deed was testamentary in its character, and void, as being in conflict with the Statute of Wills. It appears thatcthe grantor, at the time of making this deed, conveyed lands to several of his children, delivering their deeds, which were recorded soon thereafter. Sylvia was his only daughter yet unmarried, and resided with him. Her deed was placed on record by some one in 1872, before her marriage. The evidence regarding the delivery of the deed is somewhat vague and admitted to be conflicting, yet we think the more reasonable testimony sufficiently shows the deed to have been in the possession of the daughter (the grantee) and her husband, David Cade. 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. (Tunison v. Chamblin, 88 Ill. 378.) The deed here had been recorded, and that also raises the presumption that it had been delivered. Himes v. Keighblingher, 14 Ill. 469; Warren v. Town of Jacksonville, 16 id. 236. The theory of appellant that the deed had been abstracted from his papers and placed on record by David Cade is not supported by the evidence, as it clearly appears that it was recorded before he came into appellant’s family, and even before he had met and become acquainted with the daughter, Sylvia. Under these facts the burthen was cast upon appellant to clearly show that the deed was not delivered. The evidence tends to show that he knew it had been recorded. The file-mark of the recorder showing that fact was upon it, and since the death of the grantee it has been in his possession. His brother testifies positively to a conversation with him, in which he told him it was recorded. It is clear that he treated the land as that of his daughter, speaking of it as hers to his neighbors and friends on many occasions. Taking these facts into consideration, and also that the land had been assessed in the name of the daughter and the taxes paid by complainant, we think the chancellor was fully justified in finding the deed had been delivered. But it is contended that, no matter whether it was delivered or not, the daughter acquired no right or interest in the land conveyed, because it is absolutely void upon its face, being in conflict with the Statute of Wills. The language of the deed is: “This indenture, made this 17th day of March, in the year of our Lord one thousand eight hundred and seventy-one, between Samuel Harshbarger, Sr., party of the first part, and Sylvia Harshbarger and her heirs, (only to take effect at the death of the grantor,) party of the second part, witnesseth, that,” etc. Then 'follow the formal parts of the old form warranty deed. Appellant’s counsel insist that it thus appears that the grantor intended a conditional testamentary devise, and undertook to make a deed fill the office of a will. We do not think so. The cases cited by counsel supporting their view are not in point, as here the deed was delivered .to the grantee. This case is similar, in fact and principle, to that of Shackelton v: Sebree, 86 Ill. 616. In that case the language of the deed was, “this deed not to take effect until after my decease,—not to be recorded until after my decease.” The deed was properly executed and delivered. There, as here, the contention was urged that the deed was in the nature of a testamentary paper, and as such was not so executed and authenticated as to .become operative and valid. In disposing of that contention it was said (p. 619): “Was this deed void, or did it operate to convey the fee at the death of the grantor? Had he conveyed a life estate to another, or had he conveyed to another to hold in trust for him during his life, then it would have been free from all doubt. Or had he, in the same instrument, reserved a life estate to himself, we apprehend that it will be conceded that the title would have passed to the grantee. * *. * And had he expressly reserved in this deed a life estate he would have held in the same manner. If, then, in either of these cases the grantor could thus hold the title necessary to support a remainder, why not when, by operation of law and construction of the deed, he holds a life estate in legal effect the same? We are unable to perceive any reason in law or in fact.” And further: “Here the remainder-man was in being, named as grantee, and no reason is seen, since livery of seizin has been abolished, why the fee in remainder did not vest on the delivery of the deed, which has been adopted as a substitute for livery.” By the act of delivery the title to the fee in the lands in controversy vested in Sylvia Harshbarger, reserving a life estate in the grantor. The decree of the court below is in conformity with the facts and law of the case, and will be affirmed. _ „ Decree affirmed.