Mr. Justice Scholpield
delivered the opinion of the Court:
The principal question to be determined on this record is, was the deed from Alexander Campbell to Alexander, McEwen delivered by the former to the latter, and accepted by the latter in the lifetime of the former ?
The propositions contended for by appellants’ counsel: First, That where a deed, duly executed, is found in the hands of the grantee, there is a strong implication that it was delivered. Second, That the onus probandi is upon the party denying the delivery. Third, Where a deed is of a beneficial character an acceptance by the grantee may be presumed— especially where the grantee is a minor and the deed is for the purpose of effecting a voluntary settlement. And, Fourth, That the execution and recording of a deed by the grantor is prima facie evidence of a delivery,—may all be conceded to be well established law without seriously affecting appellee’s claim, for the deed from Campbell to McEwen was not found in the possession of McEwen, and we are not left to implication or inference to ascertain what were the facts, so far as relates to the delivery to McEwen and his acceptance of the deed.
Mrs. Campbell testifies that, after the death of Campbell, she made search for this deed but was unable to find it; that she then went to McEwen and asked him in regard to it. He denied that he knew anything of the deed or that he had ever heard of it. She then went (on the suggestion of some one that she make search there,) to the recorder’s office, and there, on inquiry, found the deed. She says that after the deed was signed and acknowledged by herself and husband she had no further knowledge of it until as above stated. Her husband never mentioned to her what he did with it.
McEwen testifies that about two years before the death of Campbell the latter asked him if he (McEwen) had any objection to his (Campbell’s) conveying these lots over to him, and that he replied in the negative, but that Campbell never mentioned the subject to him again, and that he never knew that he had made a deed conveying the property to him until after Campbell’s death and when asked about the deed by Mrs. Campbell; that he never paid anything for the lots, and, after Mrs. Campbell found the deed at the recorder’s office and notified him that it was there, he went and got it, and subsequently, upon her request, conveyed the property to her. He says he had no information whatever of the execution or existence of this deed in the lifetime of Campbell.
These witnesses are corroborated by the evidence of the notary before whom McEwen’s deed to Mrs. Campbell was acknowledged, showing that they then both gave the same version of the matters they now do.
There is no evidence of any direction by Campbell to the recorder in regard to the deed, nor, indeed, of how that instrument got to the recorder’s office.
Campbell is shown to have been, at the time the deed was executed, despondent, low-spirited and reticent, and this gradually increased upon him until shortly before his death, when he was declared insane in consequence of softening of the brain.
The prima facie evidence of a delivery of the deed from the fact of recording was liable to be rebutted. Jackson v. Perkins, 2 Wend. 308; Gilbert v. North American Fire Insurance Company, 23 id. 43,—and the facts here conclusively rebut that presumption. The deed was not, in fact, delivered, and its existence was not known of by the grantee in the lifetime of the grantor.
In Jackson ex dem. Eames v. Phipps, 12 Johns. 418, Joseph Phipps being in embarrassed circumstances, in the fall of 1808 went to his brother, Aaron Phipps, and agreed to give him a deed of his farm to secure two notes of about $130, with interest. Joseph Phipps accordingly returned home and executed and acknowledged the deed, and carried it to the clerk’s office for recording on the day of its date, without the grantee or any person on his behalf being present, or receiving a delivery of the same. Aaron, the grantee, died in the fall of 1809, and in February, 1810, the defendant received the deed as the son and, probably, heir of Aaron.
The court, per Spenceb, J., said: “ Under these circumstances the deed must be considered inoperative. It is requisite in every well made deed that there be a delivery of it. The delivery must be actual by doing something and saying nothing, or else verbal, by saying something and doing nothing; or, it may be by both, but by one or both of these it must be made. * * * A delivery of a deed, which, we have seen, is essential to its existence and operation, ex vi termini, imports that there be a recipient. It would be absurd to hold that a thing was delivered when there was no person to receive; and, in this case, the grantee died without any delivery to him.” In the present case we have only to substitute grantor for grantee, and, obviously, the reasoning is equally applicable and cogent in the one ease as in the other. To the same effect is Jackson v. Richards, 6 Cowen, 616. See, also, Fisher v. Hall, 41 N. Y. 416.
So, it is held in Massachusetts the mere recording of a deed is not conclusive evidence of a delivery. Maynard v. Maynard, 10 Mass. 456; Samson v. Thornton, 3 id. 275; Hawkes v. Pike, 105 id. 560; Welch v. Sackett, 12 Wis. 253.
The doctrine of Jackson v. Phipps, supra, is approved and followed, in a somewhat analogous case, by the Supreme Court of Hew Hampshire. Derry Bank v. Webster, 44 N. H. 267.
In Young v. Guilbeau, 3 Wall. 641, the same doctrine is announced by the Supreme Court of the United States. In that case, however, the deed was found after the death of the grantor among his papers. The court said: “The delivery of a deed is essential to the transfer of the title. It is the final act, without which all other formalities are ineffectual. To constitute such delivery the grantor must part with the possession of the deed, or the right to retain it. Its registry by him is entitled to great consideration upon this point, and might perhaps justify, in the absence of evidence, a presumption of delivery. But here any such presumption is repelled by the attendant and subsequent circumstances. Here the registry was, of course, made without the consent of the grantee, as he had no knowledge of the existence of the deed, and the property it purported to convey always remained in the possession and under the control of the grantor.”
In Herbert v. Herbert, Breese, 354, the same question was before this court. There the deed was acknowledged and recorded, but found by the administrator after the death of the grantor among his papers, there being no proof of an actual delivery. The court said: “ It is most manifest that there could have been no delivery of the deed to the grantee, so as to pass the estate. The act of recording a deed can not amount to a delivery, when there does not appear an assent or knowledge by the grantee of the act. In this case there is not a scintilla of evidence calculated to lead the mind to the belief that the grantee ever knew of the existence of the deed until after the death of the grantor. There could, then, have been no acceptance by the grantee, because the possession of the deed, if such had been the fact, derived after the death of the grantor could not amount to one, there having been no delivery during the life of the grantor.”
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Mr. Justice Scholpield
delivered the opinion of the Court:
The principal question to be determined on this record is, was the deed from Alexander Campbell to Alexander, McEwen delivered by the former to the latter, and accepted by the latter in the lifetime of the former ?
The propositions contended for by appellants’ counsel: First, That where a deed, duly executed, is found in the hands of the grantee, there is a strong implication that it was delivered. Second, That the onus probandi is upon the party denying the delivery. Third, Where a deed is of a beneficial character an acceptance by the grantee may be presumed— especially where the grantee is a minor and the deed is for the purpose of effecting a voluntary settlement. And, Fourth, That the execution and recording of a deed by the grantor is prima facie evidence of a delivery,—may all be conceded to be well established law without seriously affecting appellee’s claim, for the deed from Campbell to McEwen was not found in the possession of McEwen, and we are not left to implication or inference to ascertain what were the facts, so far as relates to the delivery to McEwen and his acceptance of the deed.
Mrs. Campbell testifies that, after the death of Campbell, she made search for this deed but was unable to find it; that she then went to McEwen and asked him in regard to it. He denied that he knew anything of the deed or that he had ever heard of it. She then went (on the suggestion of some one that she make search there,) to the recorder’s office, and there, on inquiry, found the deed. She says that after the deed was signed and acknowledged by herself and husband she had no further knowledge of it until as above stated. Her husband never mentioned to her what he did with it.
McEwen testifies that about two years before the death of Campbell the latter asked him if he (McEwen) had any objection to his (Campbell’s) conveying these lots over to him, and that he replied in the negative, but that Campbell never mentioned the subject to him again, and that he never knew that he had made a deed conveying the property to him until after Campbell’s death and when asked about the deed by Mrs. Campbell; that he never paid anything for the lots, and, after Mrs. Campbell found the deed at the recorder’s office and notified him that it was there, he went and got it, and subsequently, upon her request, conveyed the property to her. He says he had no information whatever of the execution or existence of this deed in the lifetime of Campbell.
These witnesses are corroborated by the evidence of the notary before whom McEwen’s deed to Mrs. Campbell was acknowledged, showing that they then both gave the same version of the matters they now do.
There is no evidence of any direction by Campbell to the recorder in regard to the deed, nor, indeed, of how that instrument got to the recorder’s office.
Campbell is shown to have been, at the time the deed was executed, despondent, low-spirited and reticent, and this gradually increased upon him until shortly before his death, when he was declared insane in consequence of softening of the brain.
The prima facie evidence of a delivery of the deed from the fact of recording was liable to be rebutted. Jackson v. Perkins, 2 Wend. 308; Gilbert v. North American Fire Insurance Company, 23 id. 43,—and the facts here conclusively rebut that presumption. The deed was not, in fact, delivered, and its existence was not known of by the grantee in the lifetime of the grantor.
In Jackson ex dem. Eames v. Phipps, 12 Johns. 418, Joseph Phipps being in embarrassed circumstances, in the fall of 1808 went to his brother, Aaron Phipps, and agreed to give him a deed of his farm to secure two notes of about $130, with interest. Joseph Phipps accordingly returned home and executed and acknowledged the deed, and carried it to the clerk’s office for recording on the day of its date, without the grantee or any person on his behalf being present, or receiving a delivery of the same. Aaron, the grantee, died in the fall of 1809, and in February, 1810, the defendant received the deed as the son and, probably, heir of Aaron.
The court, per Spenceb, J., said: “ Under these circumstances the deed must be considered inoperative. It is requisite in every well made deed that there be a delivery of it. The delivery must be actual by doing something and saying nothing, or else verbal, by saying something and doing nothing; or, it may be by both, but by one or both of these it must be made. * * * A delivery of a deed, which, we have seen, is essential to its existence and operation, ex vi termini, imports that there be a recipient. It would be absurd to hold that a thing was delivered when there was no person to receive; and, in this case, the grantee died without any delivery to him.” In the present case we have only to substitute grantor for grantee, and, obviously, the reasoning is equally applicable and cogent in the one ease as in the other. To the same effect is Jackson v. Richards, 6 Cowen, 616. See, also, Fisher v. Hall, 41 N. Y. 416.
So, it is held in Massachusetts the mere recording of a deed is not conclusive evidence of a delivery. Maynard v. Maynard, 10 Mass. 456; Samson v. Thornton, 3 id. 275; Hawkes v. Pike, 105 id. 560; Welch v. Sackett, 12 Wis. 253.
The doctrine of Jackson v. Phipps, supra, is approved and followed, in a somewhat analogous case, by the Supreme Court of Hew Hampshire. Derry Bank v. Webster, 44 N. H. 267.
In Young v. Guilbeau, 3 Wall. 641, the same doctrine is announced by the Supreme Court of the United States. In that case, however, the deed was found after the death of the grantor among his papers. The court said: “The delivery of a deed is essential to the transfer of the title. It is the final act, without which all other formalities are ineffectual. To constitute such delivery the grantor must part with the possession of the deed, or the right to retain it. Its registry by him is entitled to great consideration upon this point, and might perhaps justify, in the absence of evidence, a presumption of delivery. But here any such presumption is repelled by the attendant and subsequent circumstances. Here the registry was, of course, made without the consent of the grantee, as he had no knowledge of the existence of the deed, and the property it purported to convey always remained in the possession and under the control of the grantor.”
In Herbert v. Herbert, Breese, 354, the same question was before this court. There the deed was acknowledged and recorded, but found by the administrator after the death of the grantor among his papers, there being no proof of an actual delivery. The court said: “ It is most manifest that there could have been no delivery of the deed to the grantee, so as to pass the estate. The act of recording a deed can not amount to a delivery, when there does not appear an assent or knowledge by the grantee of the act. In this case there is not a scintilla of evidence calculated to lead the mind to the belief that the grantee ever knew of the existence of the deed until after the death of the grantor. There could, then, have been no acceptance by the grantee, because the possession of the deed, if such had been the fact, derived after the death of the grantor could not amount to one, there having been no delivery during the life of the grantor.”
The court then quotes, with approbation, from Jackson ex dem. Eames v. Phipps, supra, after which it is further said: “ 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 would be idle to contend that there was a delivery and reception, when the grantor died before the grantee knew of the existence of the deed. He could not, then, receive that of the existence of which he had no knowledge, nor could there have been a delivery to him without such an acceptance. There had been no act 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 knowledge, 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.” It would be impossible to use language more applicable to the facts here than this.
■ In Kingsbury v. Burnside et al. 58 Ill. 324, this language is referred to with approbation. And it was there, among other things, said, after alluding to the rule, that the delivery of a deed duly executed and acknowledged to the register, aided by the subsequent "possession 0f the deed by the grantee, might be evidence of a delivery to him: “But, here, the delivery of it at the recorder’s office is not aided by a subsequent possession of it by the grantee. There is not only no evidence that he ever had possession of it, or of circumstances tending to that conclusion, but it appears affirmatively that he never had.” And this is precisely, as we have seen, the case here.
Wiggins v. Lusk, 12 Ill. 136, in its enunciation of general principles, follows Herbert v. Herbert, supra.
But counsel for appellants assume that the same amount of proof is here requisite to show that there was no delivery, that would be requisite to establish that fact, where the grantee is in possession of the property claiming under a deed duly recorded and in his possession. To impeach the delivery, in such a case, would undoubtedly require an amount and character of evidence sufficient to impeach the execution of the deed if attacked in any other respect. But that is not the present case. The grantee here is not shown to be in possession of the property, nor is the deed found in his possession. He is not in possession of the property, and the deed is found in the recorder’s office,—and, in this regard, there is no conflict in the evidence.
The mere act of recording, alone, as we have seen, is but prima faeie evidence of a delivery, and liable to be rebutted; and it is successfully rebutted, as all the cases agree, when it is shown that the deed was not in the nature of a family settlement, or of a gift to a minor, (as to which hereafter,) but is intended to confer no benefit upon the grantee; and its execution and recording are wholly unknown to him until after the death of the grantor.
Again, it is assumed that the present case is different, in principle, from those we have referred to, because the certificate of acknowledgment of the present deed follows the form of our statute, and uses the word “delivered,” while in those cases that word does not thus occur.
It is a sufficient answer to this that the proof here is clear by the evidence of two witnesses—that of McEwen and Mrs. Campbell—that the deed was not, in fact, delivered at or before its acknowledgment.
The strongest case seemingly in favor of appellants is Rivard v. Walker et al. 39 Ill. 413.
In that case a father executed a deed to his minor children, left it with the magistrate before whom it was acknowledged, directing him to leave it at the recorder’s office for record, which the magistrate did. Subsequently the father called upon the recorder, paid him his fee for recording the deed, and told the recorder not to deliver the deed to any one but himself, except in the event of his death, but in that event, to deliver it to the grantees.
How, it will be noticed, right here, that case is distinguishable from the present in this: Here, the grantee is not a minor—is not related to the grantor—and no directions were given the recorder or any one else in regard to the delivery of the deed. The court in that case refer to Bryan v. Wash, 2 Gilm. 568, and Masterson v. Cheek, 23 Ill. 72, and apply the rule recognized by them, that “ the law presumes much more in favor of the delivery of deeds, in the case of voluntary settlements, especially when made to infants, than it does between parties of full age, in ordinary cases of bargain and sale,” and the court proceed to say: “ For, in this case, the bill shows upon its face that the complainant [the grantor] intended to part with the title to his lands for the purpose of placing them where they would be beyond the reach of debts contracted by his spendthrift wife, and secured for the benefit of his children. Both of these objects are avowed in the bill, and yet they would not have been accomplished if the deed, which was made upon a consideration of one dollar, and natural love and affection, had not been intended to take immediate effect. Such being the intention of the grantor, he evidenced and consummated it by delivering the deed to the magistrate without any species of reservation, and directing him to have it recorded. This in behalf of infant grantees, and when explained, as it is by the averment in the bill, will be regarded as an absolute delivery for the benefit of the infants, and the fact that the grantor afterward manifested to the recorder an intent not to part with all- control over the deed, can not relieve him from the effect of such absolute delivery.”
In Bryan et al. v. Wash et al., referred to in that opinion, the court said: “ It must be remembered that the law presumes much more in favor of 'the delivery of deeds in case of voluntary settlements, especially when made to infants, than it does in ordinary cases of bargain and sale. The same degree of formality is never required, on account of the great degree of confidence which the parties are presumed to have in each other, and the inability of the grantee frequently to take care of his own interests.”
In the other case referred to—Masterson v. Cheek—the court said that all the cases referred to on the question of delivery were reconcilable on the consideration that the intention was, and must be, the controlling element, adding: “ In a case like this, where the conveyance was voluntary, and to an infant who died before he reached an age to assent or accept the conveyance, a delivery and acceptance will be more readily presumed than in the cases to which reference is made by appellant’s counsel.”
In Kingsbury v. Burnside et al., supra, the court, after discussing the rule under consideration, say: “But that the principle underlying it is, after all, assent, presumptive or actual, on the part of the grantee.” And, in all cases where the deed, instead of conferring a benefit, imposes a burden or duty, the law, in the absence of express assent or acceptance, will not presume to that effect.
It is clear here, from all the evidence, that the purpose of Campbell in making this deed was to put the property in McEwen in trust for the family of the grantor. McEwen so understood it, and Mrs. Campbell testifies that such was his expressed purpose in making the deed.
Whether he intended to take an express declaration from McEwen of the trust upon which he held the property, or to rely upon his honor, can now only remain matter of conjecture. His design, doubtless by reason of his unfortunate mental condition, was never consummated, whatever it may have been. He failed to perfect the delivery, and McEwen, never having had the deed either actually or constructively delivered to him, could not, of course, accept it, and become bound legally or morally to execute the-trusts it was designed for.
The fact that McEwen told Campbell that he might convey the lots to him can no more be construed an acceptance here than was the prior understanding that the deed was to be executed in Jackson ex dem. Eames v. Phipps, supra. At most it but indicated a willingness to accept, and, being gratuitous, it might subsequently be changed. It was but a promise of what would be done, not an acknowledgment of what had been done.
We think the court below properly found that the deed had not been delivered.
If it should be claimed that, notwithstanding all this, yet, since the deed was on record, as if duly delivered, when the insurance company loaned the money to Mrs. Campbell and took the deed of trust from her, and there was nothing to notify the company that the deed had not been delivered, the appellants should be estopped to deny that there was a delivery of the deed, it might be replied, without inquiring what force there would be in such a claim, that it is proved by the evidence of Mrs. Campbell that she notified the agent of the company, before any money was loaned or deed of trust was executed, that the property in fact belonged to appellee. This notice was in writing, signed by her, as she says, and might be regarded as a sufficient acknowledgment of the trust.
With regard to the cross-errors, we think it only necessary to say that the decree does equity to appellee. To the extent that his estate has been reasonably improved and he himself has been personally benefited from the money of appellants, it is right that his estate should be charged with its payment. This doctrine was applied in Kinney et al. v. Knoebel et al. 51 Ill. 114. Same case, again reported, after subsequent hearing in the circuit court, as Smith et al. v. Knoebel et al. 82 id. 392.
The decree below is, in all things, affirmed.
Decree affirmed.