Potter v. Barringer, 236 Ill. 224 (1908)

Oct. 26, 1908 · Illinois Supreme Court
236 Ill. 224

Mary A. Potter, Appellant, vs. Mattie J. McDavid Barringer, Appellee.

Opinion filed October 26, 1908.

1. Deeds—when a deed is presumed to have been delivered. Where a deed, the due execution and acknowledgment of which is not denied, is in the possession of the grantee at the time of-the grantor’s death, the presumption is that it has been delivered, and such presumption can be overcome only by convincing evidence.

2. Same—when a deed must be regarded as delivered. A duly executed and acknowledged deed produced by the grantee after the grantor’s death, and which is shown by competent witnesses to have been in the grantee’s possession long prior to the grantor’s death, must be regarded as well delivered, even though the grantor retained possession of the land, renewed a mortgage, sold coal rights and received the rents and profits during her lifetime.

3. Same—when verbal understanding does not invalidate deed. An unconditional deed is not invalidated by the fact that at the time of its delivery there was a verbal understanding that the grantor should retain possession, and control of the premises during her lifetime and that the grantee would not record the deed until the grantor’s death.

4. Same—cancellation of delivered deed does not re-invest the grantor with title. After a deed has been delivered the grantor cannot cancel it without the grantee’s consent, and even then the grantor will only- acquire the equitable, and not the legal, title to the property.

5. Evidence—when testimony by attorney is not incompetent as being privileged communications. Where an attorney is called upon by his client not for counsel or advice but merely to draw a deed in a certain manner, the statements of the client as to her reasons for wanting the deed drawn are not privileged, and the attorney may testify as to the delivery of the deed and the understanding upon which it was delivered.

Appear from the Circuit Court of Montgomery county; the Hon. S. B. Dwight, Judge, presiding.

This is an appeal from a decree entered by the circuit court of Montgomery county dismissing, for want of equity, a bill filed by appellant, Mary A. Potter, against appellee, *225Mattie J. McDavid Barringer, for the cancellation of a deed and to quiet title to certain land in that county.

Mary A. McDavid was at one time the owner of the land in question. Her husband was James B. McDavid, and they had one son, William, who was evidently an able and likable young man but was somewhat dissipated. William married the appellee, whose maiden name was Mattie Wilson and who had inherited from her. father some six hundred acres of land. This property, the evidence shows,. she had lost, before the time of the transactions now in question, by endorsing notes with her husband and his father. William McDavid, appellee’s first husband, died in the spring of 1903, his father dying before that date. Mary McDavid and appellee for some time leased and ran a hotel at Hillsboro, the furnishings of the hotel being largely the property of the former. Appellee seems to have transacted most of the business in connection with running the hotel, Mary McDavid making her home there. The deed which is here sought to be set aside is dated November 2, 1903, and is a statutory warranty deed without any conditions on its face, signed and acknowledged by Mary McDavid, conveying to Mattie J. McDavid the house and lots in Hillsboro and one hundred and twenty acres of the farm land included in the deed of trust. The acknowledgment was taken November 2, 1903, by James B. Barringer, notary public, who was then, and had been for some twenty-five years, cashier of a bank at Hillsboro. In October, 1904, he married Mattie J. McDavid, but there is nothing-in the record to show that this marriage was anticipated at the time the acknowledgment was taken.

The testimony in reference to the execution and delivery of this deed is substantially as follows: Judge Dane, who had practiced law in Hillsboro about forty-four years, testified that on November 1, 1903, Mary McDavid came to his office and told him that Mattie was about to go to St. Douis as a house-keeper, and she (Mrs. McDavid) did not want *226her to do this; that Mattie had lost her fortune, and that she (Mary McDavid) wanted to make a straight deed to Mattie to the house and lots and one hundred and twenty acres of the farm land; that he made pencil notations of what she wanted, but as it was nearly evening the matter was put off until the next morning; that on the following morning, not wishing to write the deed with a pen and- there being no one then in the office who could operate the typewriter, he took the paper containing the description down to the bank, and Frank McDavid, at his request, wrote the deed tín the typewriter; that he (the witness) then took the deed up to the hotel and gave it to Mary McDavid, and asked her to take it to fhe bank and sign and acknowledge it before Mr. Barringer; that as she did not return.for some time he went to look for her, and met her coming back with the paper in her hand, signed and acknowledged; that at her request he returned to the hotel and they found Mrs. Mattie J; McDavid, and he said to her, in the presence of Mary McDavid: “Mattie, your mother-in-law wants to convey this deed to you; she wants to reserve a life interest in this land,—the rents and profits, and all that kind of thing,— and this deed is not to be put on record until she dies, and she wants you to stay here; are you willing to accept this deed on that condition?” ■ He stated that Mattie said she was, and he thereupon handed the deed to her and came out; that he gave it directly into her hands under the direction and in the presence of Mary McDavid, who was standing by and approved all that was said, and who made the remark that she did not want to see Mattie working as a' hired woman for anybody. Frank McDavid, assistant cashier of the bank, testified that he was a nephew of Mary McDavid and at Judge Dane’s request wrote the deed in question on the typewriter; that she came to the bank and' signed and acknowledged it before Mr. Barringer and that he (McDavid) signed as a witness; that he saw the deed a number of times after that, in the bank, among the papers *227of appellee. Joel MeDavid, president of the bank, testified that he saw the deed in question several times in a small bundle of papers belonging to appellee which were deposited by her for safe keeping in the bank.

During the time Mary MeDavid and her daughter-in-law were living together at the hotel they were evidently on fairly good terms, with perhaps occasional disagreements. In July, 1904, they sold their interest in the hotel, and sometime thereafter Mary MeDavid went to live at the Barringer residence.

In October, 1904, as has heretofore been stated, Mattie J. MeDavid married Barringer. Mary MeDavid was not pleased with this, and she and her daughter-in-law seem to have become much more estranged after the marriage than before. Shortly before the marriage Mary MeDavid went to live at Shoemaker’s and remained there until March, 1905, when she moved to her own home, and appellant, Mary' A. Potter, her niece, came there to live and remained with her until her death. Mary MeDavid continued to treat the land as if she was the owner. In March, 1906, she renewed a mortgage on the farm for $1700, taking up one given in 1902, which had become due. In August, 1907, she sold a coal option for the underlying mineral on the farm for about $1200, James Barringer, the husband of appellee, assisting her in this transaction..' June 8, 1907, she made her will. She was then seventy-nine years old. The will contained some personal bequests and some provisions for cemetery lots, amounting to about $1200. It also stated: “1 give and bequeath to Mattie J. MeDavid Barringer and James B. Barringer each the sum of one dollar, and nothing more.” It also gave the daughter of her grandson her house and lots in Hillsboro, subject to the payment of the personal and cemetery bequests above mentioned. It also gave Mary A. Potter, appellant, in “consideration of her kind treatment and care” during the later years of testatrix’s life, all of her household and kitchen furniture and per*228sonal property not otherwise bequeathed 'and the one hundred and twenty acres of land in question in this proceeding, on condition of her paying the mortgage indebtedness thereon and $250 to a certain church. The will was filed for probate October 7, 1907, and on the same date the deed in question was filed. This bill was filed January 8, 1908.

E. V. Hill, and Thomas M. Jett, for appellant.

Amos Miller, and George R. Cooper, for appellee.

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 *229McDavid 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 re*230corded 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 *231v. 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, *232and 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.