Walls v. Ritter

Mr. Justice Wilkin delivered the opinion of the court: This appeal presents two questions: First, was there a sufficient delivery of the deed in question to appellant to vest the title in him; and second, are appellees concluded by the declarations and admissions of deceased, while in possession, in disparagement of his title. On the first point, appellant testified, over objection as to his competency, that the key to the box in the bank was delivered to him by the deceased more than two months prior to his death, and that it remained in his exclusive possession until after the box was opened in the presence of Ritter, at the bank. It is contended that under this proof the delivery of the key was a symbolical delivery of the deed, and manifested an intention of the grantor to deliver the same. Opposed to this is the evidence of two witnesses that appellant had stated to them that his grandfather had given him the key so he could transact some business in relation to a note or notes, and also the evidence of the banker, as above stated, that Walls and Ritter each had the key at different times during the lifetime of deceased, warranting the fair inference that the purpose in delivering the key to each of them was merely to enable either of them to transact business for the decedent. It is a familiar and fundamental rule of law, that in order that a deed operate as an effectual transfer of the title to land it must be delivered. Delivery is the final act on the part of the grantor by which he consummates the purpose of his conveyance, and without it all the other preceding formalities are insufficient to render it effectual as an instrument of title. The law prescribes no particular form to be pursued in making the delivery, and it may be done “by acts without words, or by words without acts, or both.” (Provart v. Harris, 150 Ill. 40; Byars v. Spencer, 101 id. 429; Skinner v. Baker, 79 id. 496; Price v. Hudson, 125 id. 284.) Or it may be “either actual, by doing something and saying nothing, or else verbal, by saying something and doing nothing, or it may be by both. But it must be by something answering to the one or the other of these, and with an intent thereby to give effect to the deed.” (Rountree v. Smith, 152 Ill. 493; Jackson v. Phipps, 12 Johns. 419.) Not only must there be delivery to pass the title, but the delivery must be such that the grantor loses all power and dominion over the instrument of conveyance, and that, too, beyond his recall. There is no exception to the rule that, whatever method of delivery is adopted by the grantor, it must appear that by his acts or words, or both, he intended to divest himself of his title. The intention to make a delivery must clearly appear. These propositions have been decided so often by this court that a citation of cases is unnecessary. In this record we have no evidence whatever that the grantor said anything to the grantee, or to any one in his behalf, about the delivery of the deed, and the only evidence of the grantor’s having done anything in relation to a delivery is the giving of the key to Walls, herein-before discussed. We think it too clear for argument that, even treating all the evidence here relied upon as competent, it wholly fails to prove a delivery of the deed in question. It is equally clear that the testimony of appellant as to the delivery of the key to the box to him was incompetent. The declarations made by the deceased, as proved, show an intention on his part to give the land to appellant, but they have no bearing on the vital question, Did he give it to him by the execution and delivery of a deed of conveyance, without which no title could pass? On the second question above stated the doctrine of estoppel in, pais is relied upon by counsel for appellant. That doctrine is wholly inapplicable to the facts of this case. It is one of the fundamental principles of estoppel in pais that it can only be invoked by a person who has relied upon the statements or declarations made to him, and, relying upon them, has changed his condition with reference to the subject matter of the statements or declarations upon which the estoppel is based. (Robbins v. Moore, 129 Ill. 30; Flower v. Elwood, 66 id. 438; Hill v. Blackwelder, 113 id. 283; Noble v. Chrisman, 88 id. 186; Powell v. Rogers, 105 id. 318; Tiedeman on Real Prop. sec. 731.) In this case there is no evidence of any statements by Sims to appellant concerning the deed or the latter’s ownership of the land. There is no evidence that Walls ever relied upon any statements made by Sims for anything whatever, and there is no evidence that Walls ever changed his position or condition with reference to the land, or incurred any liability or obligation on the faith of any statement or declaration by Sims concerning the land or Walls’ ownership of it. On the contrary, it appears from the evidence that Walls was the tenant of Sims as to the land, and actually paid rent therefor to Sims’ personal representatives for the year covering the execution of the deed relied upon, after the death of Sims, and at the time many of the declarations relied upon as raising an estoppel were made. There is no principle upon which, under this evidence, appellant’s claim of title to the land in question can be upheld. The circuit court committed no error in its decree, and it will accordingly be affirmed. Decree affirmed.