Blake v. Ogden

Mr. Justice Carter delivered the opinion of the court: Counsel for appellant contends that it is admitted by the pleadings that the deed in question had never been delivered to appellee, or anyone for her, during the lifetime of appellant’s wife. The allegations in the bill are not at all clear on the question of delivery. There is no positive denial that appellee herself was given possession of the deed. The deed was evidently to be delivered at some time to appellee. That the deed was never lawfully delivered is merely a conclusion of appellant, and is not, therefore, admitted by the demurrer. (County of Christian v. Merrigan, 191 Ill. 484.) A delivery is an essential part of the execution of a deed, but no special form or ceremony is necessary to constitute a sufficient delivery. (Hawes v. Hawes, 177 Ill. 409.) 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 also been recorded, and that also raises the presumption that it had been delivered. (Harshbarger v. Carroll, 163 Ill. 636.) On the facts presented there is no ground for holding' that the deed was not lawfully delivered to appellee and lawfully filed for record. • Even if the allegations of the bill that the deed was not to be delivered until after the death of appellant’s wife and that it was delivered and recorded contrary to this agreement be according to the facts, still, under the authorities in this State, we would not be prepared to hold that said deed would then be, in effect, a testamentary disposition of said real estate. (Harshbarger v. Carroll, supra; Shackelton v. Sebree, 86 Ill. 616.) However, there is nothing alleged in the bill to indicate that the appellee had any knowledge of the understanding claimed to exist between appellant and his wife as to the delivery of the deed in question, and in case of an actual delivery of a deed by the grantor to the grantee the title will pass, notwithstanding a verbal understanding that it is to take effect only on certain conditions. (Fletcher v. Shepherd, 174 Ill. 262.) The appellee herein is the only one who will be a sufferer if the deed is set aside, and by the admitted facts she is an innocent party. It is alleged in the bill that the only reason why this property was not devised by will to said appellee was because it could be more economically vested in her by deed to be delivered and take effect after the death of appellant’s wife; “that such course would save the estate the taxes which the law imposes upon devises.” On this showing there would be no justification for setting aside this deed as having been delivered through fraud. The allegation admits that the deed was made for the express purpose of depriving the State of inheritance taxes. Equity cannot interfere to set aside a deed made under such circumstances and for such purposes. Creighton v. Roe, 218 Ill. 619; Dunaway v. Robertson, 95 id. 419. We find no reversible error in the record, and the decree of the circuit court will accordingly be affirmed. Decree affirmed.