Lange v. Cullinan

Mr. Justice Wilicin delivered the opinion of the court: The point urged by complainants below, and again made here, is, that the evidence clearly showed that the deed in question was not delivered by the grantor to Mrs. Cullinan, but that, on the other hand, it was placed in Mrs. Grant’s possession under such circumstances as to make it her duty to hold it, as the agent of the grantor and subject to his control, during his life. The competency of the evidence of Mrs. Grant and her husband is not questioned, and it is in evidence that the grantor, by his attorney, delivered the deed to Mrs. Grant, and not to the grantee; that Mrs. Grant was at that time attending to some of his business; that when the grantor was asked as to the disposition of the deed, he directed it to be delivered to Mrs. Grant, saying, “She is all right,” and expressly directing that it be not delivered to the grantee named therein. The grantee was in the house at the time, going about her household duties, but whether or not she was aware of the making of the deed does not appear. The deed could have been handed to her, but the grantor expressed a desire not to do so. Why it was placed In the hands of his sister, without any directions as to its delivery, has no explanation, unless it be inferred that he desired to retain control over it. Nothing was said indicating that she was to take the deed as the trustee or agent for the grantee, but, on the other hand,inasmuch as his sister was attending to a part of his business because of his illness and inability to attend to it himself, it is not unreasonable to infer that she was in this, as in other things, acting for him. If he had regained his health there can be no doubt that the custodian would have been bound to return the deed to the grantor upon bis demand, had she received no instructions other than those detailed by her in her testimony. Delivery to the agent of the grantor is not sufficient. (Barrows v. Barrows, 138 Ill. 649.) To be a good delivery the deed must pass beyond control of the grantor and not be subject to his call. Stinson v. Anderson, 96 Ill. 373; Byars v. Spencer, 101 id. 429; Bovee v. Hinde, 135 id. 137; Wilson v. Wilson, 158 id. 567; Shults v. Shults, 159 id. 654; Walter v. Way, 170 id. 96; Hawes v. Haioes, 177 id. 409; Walls v. Ritter, 180 id. 616. Counsel contend that the intention of the grantor to presently deliver the deed is clearly shown by the statement made in his will that he had made such a deed, and by his statements to several persons that he would make such a deed, and, afterwards, that he had made it. It is true, these statements indicate an intention to execute a conveyance to the grantee; but, as this court said in Walls v. Ritter, supra, such declarations have no bearing on the vital question, did the grantor actually make and deliver the deed of conveyance to the grantee? The fact that the will makes no disposition of this property does not show that he intended the title to pass presently to the grantee, during his lifetime. (Hawes v. Hawes, supra.) There was neither act nor declaration of delivery, nor intention to deliver presently at the time the instrument was made. Bryan v. Wash, 2 Gilm. 557; Gunnell v. Cockerill, 79 Ill. 79; Stinson v. Anderson, supra; Byars v. Spencer, supra; Jordan v. Davis, 108 Ill. 336; Wellington v. Heermans, 110 id. 564; Weber v. Christen, 121 id. 91; Wilson v. Wilson, supra; Bovee v. Hinde, supra. Under the well settled rules of this State we are satisfied that in this instance there was no delivery of the deed to the grantee. It is true, the master reached the conclusion of fact that delivery was made to the custodian of the deed for and on behalf of the grantee, but this finding is not supported by the evidence. The testimony of Mrs. Grant and her husband is not disputed nor is its competency questioned. The finding of the master has not the force it would have had if the evidence upon the material points had been directly contradictory and disputed. The decree of the circuit court dismissing complainants’ bill will be reversed and the cause remanded, with directions to proceed in a manner not inconsistent with the views herein expressed. decree reversed.