Konser v. Konser

Mr. Justice Hand delivered the opinion of the court: The decision of this case turns upon the question whether the deed from appellee to appellant was delivered, and the determination of that question necessitates an examination of the evidence for the purpose of ascertaining with what intention appellee made the deed. The question of delivery, as between the parties to a deed, is one of intention. This court has frequently held that the recording of a deed is prima facie evidence of its delivery, ( Valter v. Blavka, 195 Ill. 610,) and that although the recording of a deed of itself is not, in law, a delivery of it, yet where it appears that the grantee in the deed has knowledge of the recording of the deed and has assented thereto, and where a recorded deed is subsequently found in the possession of the grantee, such fact amounts to prima facie evidence of delivery. (Shields v. Bush, 189 Ill. 534.) However, the prima facie evidence of delivery made by proof of recording and possession of a deed by the grantee may be rebutted and overcome by testimony which establishes that the grantor in fact did not intend to deliver the deed and have it become at once effective as a conveyance. Valter v. Blavka, supra; Union Mutual Ins. Co. v. Campbell, 95 Ill. 267. The circumstances surrounding this transaction from the date of the drawing of the deed until the commencement of this suit are fully, set forth in the statement of facts preceding this opinion and need not be reiterated at this time. From the evidence it seems clear that appellee, at the time of calling upon Zacharias, had in mind the disposition of his property after his death. He had heard of the costs of probating a will and desired to save costs, and asked that a deed be made. He was at that time advised as to the effect of delivery, and instructed to either retain possession of or deposit the deed with some friend in whom he had confidence, to be held until his death and then delivered, and he stated that he would follow such advice. Nothing said or done at the time of making the deed, as shown by the testimony of appellee and Zacharias, indicated any intention on the part of appellee to have the transfer become presently effective, but the clearly expressed intention of appellee was to so arrange his estate that appellant would get it all upon his death, he having already given his daughter all that he felt she was entitled to. The facts and circumstances do not corroborate appellant’s statement that the deed was at once delivered to •him, but preponderate in favor of the statement of appellee that he retained it in his possession from the time it was signed until he gave it to Beer to be taken to Chicago and filed for record. At the time appellee delivered the deed to Beer for the purpose of having it recorded he substantially •reiterated the statement he had made to Zacharias as to his intention in making the deed. As to the possession of the deed after it had been recorded, and thereafter, appellant is again contradicted by a disinterested witness, and appellee’s statement of the fact is corroborated. Beer testifies positively that he returned the deed to appellee and that appellee paid him the recording fee, and that appellant was not present at the time he returned the deed to appellee. As appellant claims possession of the deed subsequent to its recording from its delivery to him by Beer, and nowhere claims to have received the deed from appellee or from any other source than from Beer, and as Beer, a wholly disinterested witness, positively states he did not return the deed to appellant but did give it to the appellee, the evidence preponderates in favor of appellee’s contention that the deed remained in his possession until he left his home; and strongly corroborating this proposition is the fact that immediately upon his return, when appellee discovered that the deed was not in his bureau drawer, he at once charged appellant with having abstracted it during his absence, and appellant made no denial, but attempted to justify by claiming the deed belonged to him. It is not denied, and is clearly established by the evidence, that the property described in the deed represented the entire estate of the appellee, and that it was occupied by himself and famly at ' the time of making the deed, as his home. Appellant testified that the deed was intended as a gift of said lot without reservation and intended to become at once effective, and it does not seem probable that appellee would give to this son, then a man of but twenty-three years of age, of no business experience and just starting out for himself in life, his entire estate without the reservation of a life estate or even an agreement as to support or occupancy during life, making it possible for appellant to dispossess him, as was attempted here, at any time; and these are facts that must be given due consideration in reaching a conclusion as to appellee’s intention. Wilenou v. Handlon, 207 Ill. 104; Dorman v. Dorman, 187 id. 154. We are of the opinion that the clear preponderance of the evidence is against appellant’s contention, and that the intention of appellee was to dispose of his property so that his daughter should receive nothing more and that the title to this real estate would vest in appellant after his death. The deed was intended to operate as a will, and not as a deed, and, there being no question of estoppel here, would, as to appellant, be wholly inoperative. (Wilenou v. Handlon, supra.) The fact that appellee stated to different persons that he had made a deed to the lot to appellant is not inconsistent with the view that he intended the deed to take effect only upon his death. The decree of the superior court will therefore be affirmed. 7-, jr- j 7-, jr- j Decree affirmed.