Santee v. Day

Me. Presiding Justice Adams delivered the opinion of the court. The evidence shows very clearly that Charles E. Stade and Alfred A. Ames conspired to defraud Friedrich Kolze, or persons to whom some of the two series of notes mentioned in the preceding statement might be, by them negotiated. Abraham L. Day, although ignorant of what was intended, was indifferent and careless as to everything except the compensation promised him and his personal safety, and, by assisting to carry out the conspiracy, became a party to it. It would seem from the testimony of Day that the plan to defraud had been concocted by Stade and Ames before Stade procured the warranty deed from Friedrich Iiolze. The warranty deed is dated November 15, 1897, and the notes and trust deed November 17, 1897, yet Day testified that two or three weeks prior to his signing the notes and trust deed, the signing of such papers as Ames wished him to sign was agreed on between him and Ames. The good faith of the complainant in purchasing the notes is not questioned by defendants’ counsel; but her equitable right to a foreclosure of the trust deed is contested. Complainant avers in her bill, and her counsel claim in argument, that the trust deed, foreclosure of which is prayed, was made to secure the notes owned by complainant and numbered," respectively, 34, 35 and 36. It was certainly incumbent on complainant to prove this essential averment. There having been two series of notes, each series being exactly like the other, and signed at the same time, the fact that complainant’s notes agree with the description in the trust deed, is certainly no evidence that complainant’s notes are as found by the master, the notes which the trust deed was made to secure, because the notes, defendants’ exhibits 1, 2 and 3, also correspond with the description in the trust deed. Ho evidence whatever, except the description in the trust deed, was produced by complainant to prove that the notes held by her, and not the corresponding notes in the other series, were the notes which the trust deed was executed to secure. She relies solely on her notes corresponding with the description in the trust deed. The court found that defendants’ exhibits 1, 2 and 3 are the notes secured by the trust deed, which finding complainant’s counsel contend is not supported by the evidence. The court having found, correctly, as we think, that the notes held by the complainant are not the notes which the trust deed was made to secure, and the complainant not having proved the contrary by a preponderance of the evidence, it is not necessary, although pertinent, to the decision of the case, to find affirmatively that defendants’ exhibits 1, 2 and 3 are the notes so secured; but we think that the evidence tends to prove that they are. Stade, as the agent of Friedrich Kolze, was authorized to take notes for the deferred $18,000 of the purchase money, but certainly was not authorized to procure the execution by Day of duplicate notes, aggregating $36,000. About a month after the execution of the notes, or about December 17, 1897, Stade exhibited to Friedrich and Fred Kolze a series of forty-eight notes for the $18,000, as the notes secured by the trust deed, which he, Stade, kept in a box in a safety deposit vault. Fred Kolze counted the notes and, at the hearing, testified that defendants’ exhibits 1, 2 and 3 were among the notes exhibited to him and which he counted. These notes, apparently by Friedrich Kolze’s acquiescence, were retained by Stade, in his box, for safety. Complainant’s notes were not deposited by Stade, as collateral security for his judgment note to Spellman, until February 10, 1898, and were not sold to complainant until July 5, 1898. It is a contested question between the parties whether there was a delivery of the warranty deed from Kolze, Sr., and wife to Day. It appears from the statement of the evidence preceding this opinion, that Day never received the deed; that he did not know of its existence when he signed the notes, etc., and had not seen it till it was exhibited at the hearing; that he never owned any property in Ms life, nor authorized any one to purchase property for him, and that he never authorized the recording of the deed. Acceptance by the grantee is essential to delivery; without it there can be no valid delivery. Herbert v. Herbert, Beecher’s Breese, 354; Kingsbury v. Burnside, 58 Ill. 310; Dale v. Lincoln, 62 Ill. 22; Union Mut. Ins. Co. v. Campbell, 95 Ill. 267; Thompson v. Dearborn, 87 Ill. 87; Weber v. Christen, 125 Ill. 91. In Herbert v. Herbert, supra, the court say: “ It is also held to be essential to the legal operation of the deed that the grantee assents to receive, and that there can be no delivery without an acceptance. Indeed, a delivery of a deed, which is essential to its existence and operation, necessarily imports that there should be a recipient. How, in this case, it xvould be idlexto contend that there was a delivery and reception, xvhen the grantor- died before the grantee knew of the existence of the deed: He could not then receive that of the existqnce of xvhich -he had no knoxvledge, nor could there have been a delivery to him without such an acceptance. There had been no act on the part of the grantor before his death tantamount to a delivery, much less an actual one. The act of recording does not amount to it, because there appears a total absence of knoxvledge on the part of the grantee of such recording, or even of the existence of the deed until after the death of the grantor, and it does not appear that he had ever received the deed. The case of Jackson v. Phipps, 12 Johns. Rep. 419, before referred to, and Maynard v. Maynard and others, 10th Mass. Rep. 457, are directly in point, and sustain the principles here laid doxvn. Without then inquiring whether the deed was fraudulent, it is sufficient to ascertain that the deed was nexrer xvell executed by delivery, and that no estate passed thereby.” The laxv as thus announced has been adhered to in the subsequent cases cited. It is common sense. A deed is a contract, and, to constitute a contract, the minds of the contracting parties must meet. There having been no acceptance by Day, there was no delivery, and, as said by the court in Herbert v. Herbert, “no estate passed thereby,” and, consequently, the execution by Day, as a “dummy,” of the trust deed to Stade conveyed no title. The deed executed by Friedrich Kolze to Louisa Kolze is undoubtedly good as against the former, but we do not deem it of any importance in considering the questions presented, because if complainant is entitled to a decree of foreclosure as against Friedrich Kolze, she is entitled to such decree as against Louisa Kolze. Friedrich Kolze testified December 19, 1S99, before the master, that he had lived in the same house on his sixty-acre farm, which includes the premises described in the trust deed, and had cultivated and used the entire sixty acres as a farm for thirty-seven years, claiming to be the owner thereof. Spellman, complainant’s witness, and, as it would seem from the evidence, her agent, testified that he visited the property described in the trust deed before taking Stade’s judgment note, and the collateral notes, and that the property was being used as a farm. Friedrich Kolze’s possession of the property is evidence of fee simple title in him. Keith v. Keith, 104 Ill. 397,402. His possession was notice of his title or claim, whether legal or equitable, of which Spellman and the complainant were bound to take notice. Rupert v. Stark, 15 Ill. 540; Walden v. Gridley, 36 Ill. 523; Reeves v. Stevens & Co., 38 Ill. 418; Phillips v. Pitts & Co., 78 Ill. 72; Coari v. Olsen, 95 Ill. 273; Small v. Staff, 95 Ill. 39; Walsh v. Wright, 101 Ill. 178; Conover v. Goodman, 104 Ill. 365. In the last case, as also in the preceding cases, the court say that possession is notice to all the world of the possessor’s claim. Had complainant, or her agent, Spellman, inquired of Friedrich Kolze, complainant’s notes would never have been put up as collateral security, or sold to complainant. The fact that the farm was subdivided into blocks and lots did not affect Kolze’s possession or the effect of it as notice. Hassett v. Ridgely, 49 Ill. 197; Wharton v. Bunting, 73 Ill. 16. The decree will be affirmed. Affirmed.