Potter v. Barringer

Mr. Justice Carter delivered the opinion of the court: Appellant insists that the testimony of witness Dane was inadmissible as privileged communications given him as an attorney. Even if this testimony be not competent, we think other competent evidence in the record upholds the finding of the chancellor that the deed in question had actually been delivered. 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 this presumption. (Blake v. Ogden, 223 Ill. 204; Tunison v. Chamblin, 88 id. 378.) This deed was in the possession of the appellee previous to the death of Mary McDavid, as is shown clearly by the testimony of the two McDavids, and the proof shows, without controversy, that it was in appellee’s possession after Mary McDavid’s death. On this record there is no dispute as to the fact that the deed was duly signed and acknowledged by the grantor. Appellant seemingly contends 'that the deed is not genuine, or if it is genuine that it was canceled, because Mary McDavid made the statement that appellee did not have any papers signed by her. This statement can have no force against the positive testimony - of the signing, acknowledging and witnessing of the deed, together with the fact that it remained in the possession of appellee from that time until it was recorded. The testimony tends to show that Mary McDavid changed her mind frequently and that her memory was not the best. If, however, she actually delivered the deed, she could not cancel it without the consent of the grantee, and even then the grantor would only acquire an equitable, and not a legal, title to the property. (Fletcher v. Shepherd, 174 Ill. 262; Duncan v. Wickliffe, 4 Scam. 452.) There is no proof of any character that she tried to cancel this deed. The fact that the grantor retained possession of the property, renewed a mortgage thereon, sold a coal option for minerals under the land, controlled the property and received the rents, issues and profits during her lifetime, if the deed was actually delivered to appellee, could not re-invest her with the title. This court has held that even though deeds were found in the grantor’s possession after his death, and it was shown that he had retained possession and control of the property after making the deeds, those facts cannot overcome evidence of delivery, where the grantor understood that he was conveying the absolute title to the property as a voluntary settlement. (Ward v. Conklin, 232 Ill. 553.) The delivery of a deed is an essential part of its complete execution and is almost wholly a matter of intention. For the purpose of showing intention parol evidence is admissible, and if by such evidence it is shown that a deed not delivered was not intended to operate presently, but only upon the grantor’s death, it is uniformly held to be only a testamentary disposition. (Oswald v. Caldwell, 225 Ill. 224.) If such deed is not to take effect until the death of the grantor it is void. (Wilson v. Wilson, 158 Ill. 567; Benner v. Bailey, 234 id. 79.) But where a deed has been actually delivered to the grantee in the lifetime of the grantor, even though it provides that it is not to take effect until the grantor’s death, it will be sustained as a present grant of future interest. (Noble v. Fickes, 230 Ill. 594.) In Shackelton v. Sebree, 86 Ill. 616, this court held that a deed containing a provision that it is not to take effect “until after my decease,—not to be recorded úntil after my decease,” but which has been delivered to the grantee in the lifetime of the grantor, passed a vested remainder to the grantee in fee. To the same effect are Harshbarger v. Carroll, 163 Ill. 636, Bowler v. Bowler, 176 id. 541, Venters v. Wickins, 224 id. 569, and White v. Willard, 232 id. 464. The deed now under consideration is absolute on its face. Appellant bases her argument that there was a condition attached to it, on the testimony of Judge Lane, while contending, at the same time, that Lane’s testimony is inadmissible. Lane stated that he was called in by Mary McDavid, not to advise with her as to what she wanted, but was directed by her to draw a straight deed to her daughter-in-law, she giving her reasons why she wanted this done; that after the deed was drawn she asked him if she could still retain the possession and income of her property until her death, and he replied that it could be done. Appellant in this connection insists that Lane also testified that the understanding was that the deed was not to take effect until after the death of Mary McDavid. While on cross-examination he did say something that would furnish a basis for this contention, taking all of his evidence together we think it is a fair conclusion that he did not intend to make such a statement, for he says on re-direct examination, when his attention was directed to this point, “There was not a word said about when the deed was to take effect—not a word.” If he was a mere scrivener in drawing this deed, as contended for by the appellee, then his testimony was not privileged. (Champion v. McCarthy, 228 Ill. 87, and cases there cited.) We are inclined to think, under these authorities, the evidence was competent. That being so, there cannot be the slightest question as to the actual delivery of the deed. And even if it was accompanied, by the verbal understanding contended for by appellant, still the title passed, upon the well settled principle that a deed voluntarily placed in the hands of a grantee is never to be considered as an escrow. (Weber v. Christen, 121 Ill. 91.) A deed cannot be delivered to the grantee in escrow. In such case it must be delivered to a stranger, otherwise the deed becomes absolute at law. (Baker v. Baker, 159 Ill. 394.) A verbal understanding that a deed is to take effect only on certain conditions will not defeat the passing of title from the grantor to the grantee if the deed is actually delivered. (Fletcher v. Shepherd, supra; Blake v. Ogden, supra.) While it is not competent to control the effect of a deed by parol evidence when it has taken effect and been delivered, it is competent to show that the deed, although in the grantee’s hands, has never, in fact, been delivered. The declarations of a grantor in a deed when the grantee is not present cannot be admitted for the purpose of invalidating the deed. Parties making deeds cannot invalidate them by parol. (Francis v. Wilkinson, 147 Ill. 370, and cases cited.) Such declarations are only competent for the purpose of showing the intention of the grantor as to the delivery of the deed. The only evidence in this record that the deed was not, in fact, delivered, was the statement of Mary McDavid that she did not intend to leave appellee anything, and letters and conversations of appellee and her husband which it is claimed tend to show that they did not expect anything from Mary McDavid, together with the fact that she retained possession of the property and entered into certain transactions concerning it, as herein stated. We do not think this evidence is of such a character as to overcome the presumption that the deed, actually in the possession of. the grantee before and after the death of Mary McDavid, had been delivered. McCann v. Atherton, 106 Ill. 31. Our conclusion is, that the evidence in this record, with or without the testimony of witness Lane, justifies the conclusion that the deed in question was actually delivered by the grantor to the appellee herein. Considering the facts in this record, nothing is said in Cline v. Jones, 111 Ill. 563, Brown v. Brown, 167 id. 631, Bovee v. Hinde, 135 id. 137, and other decisions of like nature cited and relied on by the appellant, that in any way conflicts. Our conclusion is further strengthened by the fact that the chancellor, who heard the evidence in open court, saw the witnesses and their manner of testifying and is thus better able to judge of the weight to be given such testimony, has reached the same conclusion. Biggerstaff v. Biggerstaff, 180 Ill. 407; In re Estate of Kohley, 200 Ill. 189. The decree of the circuit court will be affirmed. Decree affirmed.