Mr. Justice Wilkin
delivered the opinion of the court:
The attempt to engraft this suit, by cross-bill, upon the divorce proceeding after the decree in that action had been rendered was wholly irregular. The sworn allegations of the principal parties in the petition for alimony pendente lite and bill for injunction, and the answers thereto, as well as the testimony in support of and against these allegations, are irreconcilable with the claim of each of them to the ownership of the property here made. These matters are not, however, now of controlling importance.
The claim of L. D. Abbott and H. M. Bradford, denied in the cross-bill of Cora Belle and Fern Abbott, was a mechanic’s lien for labor and material in erecting improvements upon the East St. Louis property, and was abandoned before the final hearing. There is no controversy in this court, nor was there below, between Cora Belle Abbott and the daughter Beatrice as to the title to the north half of the north-east quarter of section 19, township 21, range 1, west, in McPherson county, Kansas, and, confessedly, so much of the decree as divests the title of the daughter to that tract and vests it in the mother is erroneous, and counsel for appellee say that it was inserted by inadvertence. The only issue, therefore, submitted to us for decision is between the appellant Cora Belle Abbott and the appellee, George B. Abbott, as to the title to lots 154 and 155 in Illinois City, (now part of the city of East St. Louis,) and to the west half of the south-east quarter of section 18, township 21, etc., in Kansas. This issue, if raised at all, is presented by the amended cross-bill of George B. Abbott filed June 28, 1900, set out at length in the foregoing statement, and the answers thereto. It is, as we understand, conceded, —at least it is not denied,—that if the title to the property described in the several deeds executed by George B. Abbott and wife vested the legal title in the grantees, their children, no sufficient reason, in law or equity, is shown, eith.er by the allegations of the bill or by the proofs, to authorize a court of equity to divest the grantees of that title and re-invest it in the grantor, George B. Abbott; and the decree below manifestly proceeds upon that theory by sustaining the title of Beatrice Abbott to the north half of the north-east quarter of section 19 and the Goethe avenue lot in East St. Louis, and the title in Pern Abbott to the east half of the south-east quarter of section 18 in Kansas.
If the finding and decree as to lots 154 and 155 can be sustained, it must be upon the contention that the evidence shows that the deed from the Highland Brewing Company, executed May 21, 1897, was changed after its delivery without the consent of George B. Abbott, as alleged in his bill. That the erasure of his name as grantee in that deed and the insertion in its stead of the name of Fern Abbott after it was delivered, without the knowledge, consent or procurement of the said George B. Abbott, would have no effect upon the validity of his title as between these parties, is too clear to become the subject of controversy. “Where a deed is altered by the substitution of grantees, it cannot support a claim to the land conveyed by the deed, asserted by the person whose name is substituted.” (Hollis v. Harris, 96 Ala. 288; Hill v. Nisbet, 58 Ga. 586; Wilds v. Bogan, 55 Ind. 331; 1 Devlin on Deeds, sec. 469; Robbins v. McGee, 76 Ind. 381.) If the change was made after the delivery of the deed to George B. Abbott, even with his consent, for the purpose of transferring the title to his daughter, Fern Abbott, it would be ineffectual for that purpose and render the deed absolutely void as a transfer of the title. In that case, however, if George B. Abbott himself procured the change to be made he could not repudiate it afterwards and claim title in himself notwithstanding the alteration, and, therefore, to sustain his contention that the title is still in him, he must have shown by proofs that such title vested in him by a delivery of the deed prior to the alteration, and that he did not make the change or consent that it should be made. We are not able to see how it can be said, upon the evidence in this record, that he did not consent to or authorize the substitution of the name of his daughter for his own as the grantee in that deed. His own testimony is irreconcilable with any other conclusion. And that of the witness Guignon, who acted in the transaction for both parties,—the Highland Brewing Company and George B. Abbott, 7r-tends very strongly to prove that, the change was made by the consent of both the grantor and grantee. The question left most in doubt is whether the change was made before or after the delivery. It is doubtless true that the deed passed into the hands of George B. Abbott with his name inserted therein, but we think from all the evidence, and especially from that of Abbott himself and Guignon, and the correspondence between the latter and the grantor, the Highland Brewing Company, it is sufficiently shown that the change was made before the final delivery of the instrument and with the consent of both parties thereto. If a deed is altered after delivery, by consent of both parties, and again delivered after the change, the deed will be valid. (Stiles v. Probst, 69 Ill. 382.) It is impossible to believe, from the testimony in this case, that George B. Abbott did not know that the name of his daughter had been substituted for his own as grantee in that deed at the time he finally received and accepted it and when he caused it to be recorded.
As to the west half of the south-east quarter of section 18, etc.:. The deed from George B. Abbott and wife to their infant son, Leslie, contains the following clause: “Provided, and this deed is made with the express condition, that said G. Leslie Abbott shall not sell, nor deed, nor mortgage, nor lease for a longer term than one year at a time, the said land until he shall arrive at the age of forty years, but should he die prior to that time, then and in that event all of the above described real estate shall belong to L. Fern Abbott, his sister, and her title thereto shall be perfect and absolute; and should he, G. Leslie Abbott, die, then L. Fern' Abbott may sell or mortgage and give a good title thereto.”
Counsel for the appellants, in their argument, seem to have anticipated a question—not raised by the bill—as to the sufficiency of this deed to convey the title to the sister, Fern Abbott, and have argued with ability, and, we think, successfully, in support of the proposition, “that where the fee in the first taker created by a deed is made determinable as upon the happening of a valid condition subsequent, followed by a limitation over of the fee or use to another upon the happening of the prescribed event, the fee or use shifts from the first to the second taker, whereby the deed is a conveyance under the Statute of Uses, as all our American deeds are, and is a clear case of shifting use.” 2 Washburn on Real Property, sec. 285, 4 Kent’s Com. sec. 296, Smith v. Smith, 23 Wis. 176, Camp v. Cleary, 76 Va. 142, Outland v. Bowen, 115 Ind. 150, Cornwell v. Wolf, 148 Mo. 545, and other authorities cited, support the proposition.
The question does not, however, arise on this record, there being nothing in the pleadings upon which to base it, nor is it controverted by counsel for appellee. Their sole contention is, that the proof shows that that deed was never delivered. The testimony of George B. Abbott,.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Wilkin
delivered the opinion of the court:
The attempt to engraft this suit, by cross-bill, upon the divorce proceeding after the decree in that action had been rendered was wholly irregular. The sworn allegations of the principal parties in the petition for alimony pendente lite and bill for injunction, and the answers thereto, as well as the testimony in support of and against these allegations, are irreconcilable with the claim of each of them to the ownership of the property here made. These matters are not, however, now of controlling importance.
The claim of L. D. Abbott and H. M. Bradford, denied in the cross-bill of Cora Belle and Fern Abbott, was a mechanic’s lien for labor and material in erecting improvements upon the East St. Louis property, and was abandoned before the final hearing. There is no controversy in this court, nor was there below, between Cora Belle Abbott and the daughter Beatrice as to the title to the north half of the north-east quarter of section 19, township 21, range 1, west, in McPherson county, Kansas, and, confessedly, so much of the decree as divests the title of the daughter to that tract and vests it in the mother is erroneous, and counsel for appellee say that it was inserted by inadvertence. The only issue, therefore, submitted to us for decision is between the appellant Cora Belle Abbott and the appellee, George B. Abbott, as to the title to lots 154 and 155 in Illinois City, (now part of the city of East St. Louis,) and to the west half of the south-east quarter of section 18, township 21, etc., in Kansas. This issue, if raised at all, is presented by the amended cross-bill of George B. Abbott filed June 28, 1900, set out at length in the foregoing statement, and the answers thereto. It is, as we understand, conceded, —at least it is not denied,—that if the title to the property described in the several deeds executed by George B. Abbott and wife vested the legal title in the grantees, their children, no sufficient reason, in law or equity, is shown, eith.er by the allegations of the bill or by the proofs, to authorize a court of equity to divest the grantees of that title and re-invest it in the grantor, George B. Abbott; and the decree below manifestly proceeds upon that theory by sustaining the title of Beatrice Abbott to the north half of the north-east quarter of section 19 and the Goethe avenue lot in East St. Louis, and the title in Pern Abbott to the east half of the south-east quarter of section 18 in Kansas.
If the finding and decree as to lots 154 and 155 can be sustained, it must be upon the contention that the evidence shows that the deed from the Highland Brewing Company, executed May 21, 1897, was changed after its delivery without the consent of George B. Abbott, as alleged in his bill. That the erasure of his name as grantee in that deed and the insertion in its stead of the name of Fern Abbott after it was delivered, without the knowledge, consent or procurement of the said George B. Abbott, would have no effect upon the validity of his title as between these parties, is too clear to become the subject of controversy. “Where a deed is altered by the substitution of grantees, it cannot support a claim to the land conveyed by the deed, asserted by the person whose name is substituted.” (Hollis v. Harris, 96 Ala. 288; Hill v. Nisbet, 58 Ga. 586; Wilds v. Bogan, 55 Ind. 331; 1 Devlin on Deeds, sec. 469; Robbins v. McGee, 76 Ind. 381.) If the change was made after the delivery of the deed to George B. Abbott, even with his consent, for the purpose of transferring the title to his daughter, Fern Abbott, it would be ineffectual for that purpose and render the deed absolutely void as a transfer of the title. In that case, however, if George B. Abbott himself procured the change to be made he could not repudiate it afterwards and claim title in himself notwithstanding the alteration, and, therefore, to sustain his contention that the title is still in him, he must have shown by proofs that such title vested in him by a delivery of the deed prior to the alteration, and that he did not make the change or consent that it should be made. We are not able to see how it can be said, upon the evidence in this record, that he did not consent to or authorize the substitution of the name of his daughter for his own as the grantee in that deed. His own testimony is irreconcilable with any other conclusion. And that of the witness Guignon, who acted in the transaction for both parties,—the Highland Brewing Company and George B. Abbott, 7r-tends very strongly to prove that, the change was made by the consent of both the grantor and grantee. The question left most in doubt is whether the change was made before or after the delivery. It is doubtless true that the deed passed into the hands of George B. Abbott with his name inserted therein, but we think from all the evidence, and especially from that of Abbott himself and Guignon, and the correspondence between the latter and the grantor, the Highland Brewing Company, it is sufficiently shown that the change was made before the final delivery of the instrument and with the consent of both parties thereto. If a deed is altered after delivery, by consent of both parties, and again delivered after the change, the deed will be valid. (Stiles v. Probst, 69 Ill. 382.) It is impossible to believe, from the testimony in this case, that George B. Abbott did not know that the name of his daughter had been substituted for his own as grantee in that deed at the time he finally received and accepted it and when he caused it to be recorded.
As to the west half of the south-east quarter of section 18, etc.:. The deed from George B. Abbott and wife to their infant son, Leslie, contains the following clause: “Provided, and this deed is made with the express condition, that said G. Leslie Abbott shall not sell, nor deed, nor mortgage, nor lease for a longer term than one year at a time, the said land until he shall arrive at the age of forty years, but should he die prior to that time, then and in that event all of the above described real estate shall belong to L. Fern Abbott, his sister, and her title thereto shall be perfect and absolute; and should he, G. Leslie Abbott, die, then L. Fern' Abbott may sell or mortgage and give a good title thereto.”
Counsel for the appellants, in their argument, seem to have anticipated a question—not raised by the bill—as to the sufficiency of this deed to convey the title to the sister, Fern Abbott, and have argued with ability, and, we think, successfully, in support of the proposition, “that where the fee in the first taker created by a deed is made determinable as upon the happening of a valid condition subsequent, followed by a limitation over of the fee or use to another upon the happening of the prescribed event, the fee or use shifts from the first to the second taker, whereby the deed is a conveyance under the Statute of Uses, as all our American deeds are, and is a clear case of shifting use.” 2 Washburn on Real Property, sec. 285, 4 Kent’s Com. sec. 296, Smith v. Smith, 23 Wis. 176, Camp v. Cleary, 76 Va. 142, Outland v. Bowen, 115 Ind. 150, Cornwell v. Wolf, 148 Mo. 545, and other authorities cited, support the proposition.
The question does not, however, arise on this record, there being nothing in the pleadings upon which to base it, nor is it controverted by counsel for appellee. Their sole contention is, that the proof shows that that deed was never delivered. The testimony of George B. Abbott,. as well as the allegations of his bill, clearly shows that he executed these deeds to his children for the purpose and with the intent of placing the legal title to the premises described,' in his children, then infants of tender years. That he kept the deeds in his own possession may be true, but he voluntarily put them upon record. And as to this deed to the son, he testified upon the hearing on the petition for temporary alimony that he actually delivered it to the child. The presumption in favor of the delivery of voluntary deeds to infant children is strong, and the burden is upon the grantor to show clearly that there was no delivery. Bryan v. Wash, 2 Gilm. 557; Masterson v. Cheek, 23 Ill. 72; Crabtree v. Crabtree, 159 id. 342, and cases there cited.
There is another insuperable obstacle in the way of the affirmance of the decree below as to this Kansas land. Both the original and amended cross-bills proceed upon the theory that the legal title to the Kansas land was vested in the children, the only claim being that they held it in trust for the benefit of the grantor and his family. There is no allegation that the deed to the son, Leslie, was not delivered, and even if the proof was as contended by counsel for appellee, it would avail nothing for the want of a corresponding allegation in the pleadings. Upon what reasoning it can be said that the title failed to pass to the son for want of a delivery of his deed, but that the title to the other tracts passed to the daughters, we are unable to perceive. The same allegation's and proof as to the delivery of the several deeds apply to all of them, and, we think, fully sustain the finding and decree of the circuit court as to the conveyances to Pern and Beatrice. Por like reasons it should have sustained the conveyance to the son, Leslie.
On the allegations and proofs in this record the decree below as to the eighty-acre tract of Kansas land and lots 154 and 155, vesting the title in the appellee, George B. Abbott, and also as to the eighty-acre tract owned by Beatrice, to which the title is vested in Cora Belle Abbott, must be reversed. In other respects it will be affirmed. The cause will be remanded to the circuit court with directions to enter a decree accordingly.
Affirmed in part, reversed in part, and remanded.