Shields v. Bush

Mr. Justice Magbuder delivered the opinion of the court: First—The original and amended bills in this case charge that the deed, executed by the appellant to his deceased wife, Catherine Shields, on December 22, 1893, was never delivered to her; and this charge in the bill is denied by the adult defendants in their answer. The first question, therefore, in the case is, whether or not there was a delivery of the deed in question. ■ There is conflict in the testimony between the appellant and his witnesses on one side, and the appellees and their witnesses on the other side; but the facts and circumstances in regard to the execution of the deed on December 22, 1893, as established by the weight of the evidence, are as follows: On December 22, 1893, appellant and his wife, Catherine Shields, went together to the law office of Lillard & Williams, two practicing lawyers in Bloomington; appellant then apd there introduced his wife to Lillard and Williams, and stated that he wanted to deed his farm and his home place in Holder to his wife, reserving a life estate in himself; he also stated, that she was a young woman, and would make him a good wife, and he wanted to reward her, and that he had given his children “all he wanted them to have.” R. E. Williams, one of the members of the law firm, then wrote the deed, and appellant signed it. The deed was then read over to the appellant, and acknowledged by him before Williams as a notary public. Appellant stated that the deed, which was read to him, was as he desired to have it. Appellant and Williams then left Mrs. Shields in the office of Lillard & Williams, and went together to the recorder’s office, apd there left the deed for record, the recorder handing ap: pellant a receipt for the deed. Appellant and Williams then returned to the office of Lillard & Williams, where Mrs. Shields awaited appellant, and he and she left the ^ffice together. On January 8,1894, appellant called at the recorder’s office for the deed, and surrendered the receipt therefor, and took the deed out of the recorder’s office. As to what occurred in reference to the possession of the deed after it was taken out of the recorder’s office by appellant on January 8, 1894, there is much conflict in the testimony. Appellant claims, that the deed was in his possession until March, 1898, and the charge is made that it was then taken from appellant’s possession in Holder by one of the brothers of Mrs. Shields. We do not think, however, that the contention of the appellant in this reg'ard is sustained by the evidence. In September, 1894, appellant and his wife went to Kentucky to make a visit to her relatives in that State, and they stayed there about two months. During this visit the deed was produced, and exhibited to and examined by several witnesses. The appellant there stated, in the presence of several witnesses, that he had made a deed of his farm, and house and lot to his wife. Upon one occasion he told his wife to go into the house, and get the deed, and show it to her father. She brought the deed from the house, and the appellant read it. After it was read, she took it and put it in her trunk. The deed was, during that visit, exhibited by the appellant to a witness, who was a lawyer, with a view of satisfying the relatives of Mrs. Shields that the deed was valid. It is shown by the testimony of some four or five witnesses, that the appellant, during that visit, stated that he had already provided for his children by his former wife, and had given what was left, to-wit, the farm and the homestead, to his wife, Catherine. When the appellant and his wife, Catherine, were preparing to return from Kentucky to Illinois after the visit made in September,-1894, she gave the deed to her father, A. G. Bush, and asked him to put it with his papers, and take care of it for her. The evidence tends strongly to show that, during that visit, the deed was in her trunk and in her possession. Upon the trial of this case the deed was produced from the possession of A. G. Bush, who stated that he had it in his possession from the fall of 1894 until he produced it upon the trial of this case. In the spring of 1898 appellant and his wife had made up their minds to leave Illinois, and go to Kentucky to live. At that time they did move from Illinois to Kentucky, and lived there until the day of her death in December, 1898. Previous to their leaving Illinois for Kentucky in 1898, a search was made at the homestead of the appellant for certain documents and papers, but particularly for a certain note-book which he desired to carry away with him. During this search, appellant stated, in answer to an inquiry as to the whereabouts of the deed which he had made to his wife, that he had no other papers in his possession than those which were found upon that search, and that he had “left his and Kitty’s papers with Mr. Bush.” This statement on the part of appellant, that he had left his wife’s papers in Kentucky with Mr. Bush, confirms the statement of Bush, that he had the deed in his possession from 1894 to the time of the trial, and that it was left with him by his daughter, Mrs. Shields. We are of the opinion, in view of the facts above stated, that there was a delivery of the deed to Mrs. Shields during her lifetime. It is to be noted, that Mrs. Shields was present with her husband when he executed the deed, and wThen he left the office of his lawyers in order tó take the deed to the recorder’s office to be recorded. Mrs. Shields waited for her husband until he returned from the recorder’s office where he had recorded the deed, and, therefore, the record of the deed must have been known to her, and its recording must have been with her assent. “It is true that the act of recording a deed cannot amount to a delivery and acceptance when there does not appear an assent or knowledge by the grantee of the act.” (Herbert v. Herbert, Breese, 354; Wiggins v. Lusk, 12 Ill. 132; Himes v. Keigliblingher, 14 id. 469). Although the act of recording a deed does not amount to a delivery of the same, yet, where it appears that the grantee in the deed has knowledge of the recording of the deed, and has assented to it, and where the recorded deed is subsequently found in the possession of the grantee, such facts amount to prima facie evidence of a delivery. (Thompson v. Dearborn, 107 Ill. 87; Weber v. Christen, 121 id. 91). No particular form or ceremony is necessary to constitute the delivery of a deed. The delivery may bq made “by acts without words, or by words without acts, Or by both.” (Provart v. Harris, 150 Ill. 40). It was said in Herbert v. Herbert, supra, that the delivery may be “either actual by doing something and saying nothing, or else verbal by saying something and doing nothing, or it may be both; but by one or both of these it must be made, for, otherwise, though it be never so well sealed and written, yet is the. deed of no force.” The very essence of delivery is the intention of the parties. Anything which clearly manifests the intention of the grantor, and the person to whom it is delivered, that the deed shall presently become operative and effectual, and whereby it appears that the grantor loses all control over it, constitutes a sufficient delivery. (Gunnell v. Cockerill, 79 Ill. 79; Latimer v. Latimer, 174 id. 418; Benneson v. Aiken, 102 id. 284). While it is true that declarations of a grantor, made before or subsequent to the execution of his deed, are not admissible for the purpose of impeaching the deed, yet subsequent declarations of the grantor, which show, that he is satisfied with the deed, have been held to be admissible. (Burt v. Quisenberry, 132 Ill. 385; Guild v. Hull, 127 id. 523). Where the conduct of the grantor, and all the circumstances, are such as to indicate that the grantor intended to give effect and operation to the deed, and to relinquish all power and control of it, the law will give effect to the deed accordingly, and will hold that there has been a delivery of the same. (Weber v. Christen, supra). Where a grantor shows his desire to preserve the deed by placing it upon record, and expresses his satisfaction with it after it has been executed, it will be inferred that he intends to make the instrument effectual by a valid delivery. (Hill v. Hill, 119 Ill. 242; Gunnell v. Cockerill, supra). The testimony shows conclusively in this case, not only that the deed was recorded with the assent and knowledge of thé grantee and, after it was recorded, was found to be in the possession of the grantee, but also that, after its execution, the appellant, the grantor therein, expressed his satisfaction with what he had done, and announced that it was his intention thereby to give the property to his wife, subject to his life estate therein. This deed was in the nature of a voluntary settlement made .by the grantor for the benefit of his wife. It is well settled, that the presumption of a delivery of a deed is stronger in cases of voluntary settlements than in the case of an ordinary bargain and sale. (Latimer v. Latimer, supra; Douglas v. West, 140 Ill. 455). Second—The decree of the court below was unquestionably correct in declaring the deed to be null and void, so far as it purported to vest the title to the homestead property in Mrs. Shields. The value of the premises occupied as a homestead did not exceed $1000.00, and inasmuch as Mrs. Shields did not unite in the conveyance thereof with her husband, the deed was invalid. Here, also, the possession of the property remained with the appellant, the deed expressly reserving to him a life estate in the property. It has been held by this court, that a conveyance of the homestead, not exceeding $1000.00 in value, by a householder to his wife, where she does not join in the conveyance and acknowledge the same, is void and passes no title. (Kitterlin v. Milwaukee Mechanics' Ins. Co. 134 Ill. 647; Anderson v. Smith, 159 id. 93; Despain v. Wagner, 163 id. 598). Third—It is claimed that the decree in this case is erroneous upon the alleged ground, that it grants affirmative relief to the defendants upon their answers, and without the filing of a cross-bill. The contention of the appellant is, that the circuit court should have rendered a decree, dismissing the appellant’s bill so far as the eighty acres of land were concerned, and that the court, by failing so to dismiss the bill and by rendering a decree holding the title to the eighty acres to be vested in appellant and appellees as heirs of Catherine Shields, deceased, subject to a life estate therein of the appellant, granted affirmative relief upon a simple answer. We do not think that the decree is erroneous in this regard. The doctrine is fully recognized, that the defendants in a bill should not be granted affirmative relief upon their answer. {White v. White, 103 Ill. 438; Mason v. McGirr, 28 id. 322). It is also true that, in a bill to remove a cloud from the title, a re-conveyance from the defendant to the complainant should not be decreed. {Pratt v. Kendig, 128 Ill. 293; Rucker v. Dooley, 49 id. 377). But it is well settled that, where a bill in chancery contains a general prayer for relief, it must be regarded as sufficient to support any decree warranted by the facts alleged in the bill. (Gunnell v. Cockerill, supra; Stanley v. Valentine, 79 Ill. 544; Davidson v. Burke, 143 id. 139; Walker v. Converse, 148 id. 622; Gibbs v. Davies, 168 id. 205). In the case of Gibbs v. Davies, supra, we said: “The rule is, where a bill contains a prayer for special relief and also a prayer for general relief, the complainant-may be denied a decree for the relief specially prayed for, and, under the general prayer, be granted such relief as he.may be found entitled to have under the allegations of fact made in the bill, and the proof in support thereof.” ín the case at bar, the prayer of the bill is that the deed in question “may be declared null and void as against your complainant, and all persons who may hereafter claim by or through him, as a cloud upon your complainant’s title, and that the said deed may be delivered up and canceled; and that your complainant may have such other and further relief, as equity may require, and to your honor may seem meet.” The amended bill alleges, that Catherine Shields left surviving her her husband, James Shields, and her father and brothers and sisters, “being the only heirs-at-law of Catherine Shields.” It also alleges, that appellant and his wife occupied the lot, and the strip connected therewith, as their homestead at the time of the execution of the deed, and “that he and his wife continued to live thereon, and that his wife did not join in the execution of the said deed, and that it was void and conveyed no title.” It is also alleged in the bill, “that no complete legal title was "conveyed to the said Catherine Shields;” and “that the said deed is without any legal effect whatever, though the same may not appear on the face of said deed.” The bill also prays “that the said deed be set aside as a cloud upon your complainant’s title, and your complainant prays the court that the said deed be revoked and declared null and void, and that the same be delivered up and canceled.” The bill was also amended by inserting the allegation “that, if the court refuses the relief above asked, this complainant prays that the court construe the said deed, and determine whether any title of estate passed by said deed. Complainant further prays that, if the court refuse the relief above asked, the court set aside the said deed ‘as to the homestead,’” etc. Under the prayer of the bill and the allegations made therein as above referred to, the decree was not too broad. It merely construed the deed, and determined what title passed thereby in accordance with the prayer of the bill. Having found that the deed was void as a conveyance of the homestead, it proceeded to determine the title as to the farm of eighty acres. As the court could not, under the facts, grant the special prayer for the cancellation of the deed as a conveyance of the whole of the property, it could only grant the genera) relief of finding and decreeing the deed void as to the homestead, and of finding and decreeing the deed valid as to the eighty acres. The relief decreed was not upon the answer, but was under the prayer of the bill. The title to the eighty acres was not vested in the appellant and the heirs of his deceased wife by the decree, but it had already been so vested by the deed, and by the law, as applied to the construction of the deed. A court of equity could not, in the performance of its legitimate functions, decree otherwise than it did on the facts of this case. Accordingly the decree of the circuit court is affirmed. Decree affirmed.