We do not agree with either the judgment of the court or its opinion. The opinion waives consideration of the objection to the testimony of the appellant and her husband *Page 213 because of their incompetency under section 2 of the Evidence act, and holds that, disregarding the appellant's entire testimony, there is no proof in the record to sustain the appellee's contention that the deed was delivered. This implies that the burden was upon the appellee to prove that the deed was delivered, and the opinion states that the unexplained possession of a deed in the hands of a third party and its recording two years after the grantor's death and seven years after its execution are the sum total of appellee's proof of delivery, and not only fail to establish the delivery of the deed but are insufficient to raise a presumption of its delivery. As to the testimony of the appellant and her husband, section 2 of the Evidence act is conclusive against its competency. The appellant sued as the heir of her mother, the grantor in the deed, and the appellee defended as the heir of her husband, the grantee, and under the express terms of the statute neither was competent to testify in the case of her own motion or in her own behalf, and the husband was likewise incompetent. Heintz v. Dennis, 216 Ill. 487; Worrell v.Torrance, 242 id. 64; Gillam v. Wright, 246 id. 398;Fitzgerald v. Daly, 284 id. 42.
*Page 214The appellant cites the case of Johnson v. Fulk, 282 Ill. 328, to the point that where a party sues or defends as a grantee and not as an heir the adverse party is not rendered incompetent to testify in his own behalf. That statement of the law appears in the opinion and is a correct statement of the law. In the four cases cited in support of it, the defendants against whom the objection was directed were either suing upon or defending a title as grantees in a deed from the deceased person or his executor and not as heirs of the deceased person. No issue was made by the pleadings except as to the validity of the deed in question, and this issue depended entirely on the question of its delivery. If the deed was never delivered by Margaret Tabor to Peter Tabor no title could pass under it to Peter Tabor's second wife upon his death.
The appellant insists that it was incumbent upon the appellee, who claimed title by virtue of the deed, to prove the fact of its delivery, and that she has failed to do so. The bill alleged the execution of the deed by Margaret Tabor, the deceased, to Peter, her husband, the appellant's step-father, and its recording in Sangamon county. This made a prima facie case of the delivery of the deed. A deed executed, acknowledged and recorded is presumed to have been delivered. (Reed v.Douthit, 62 Ill. 348; Harshbarger v. Carroll, 163 id. 636;Standard Trust Bank v. Carlson, 315 id. 451.) To invalidate theprima facie case made by the allegations in the bill of the execution and recording of the deed the bill further alleged that the deed was not delivered, but that after the death of the grantor, Peter, the grantee, obtained the deed from the papers, files and personal effects of Margaret, the grantor, through fraud and circumvention and caused it to be recorded. These allegations of non-delivery, fraud and circumvention were denied by the answer, and if the complainant had introduced no evidence her bill would necessarily have been dismissed. Whoever questions the fact of delivery under such circumstances must assume the burden of overcoming the presumption by clear and convincing evidence. (Reed v. Douthit, supra; Harshbarger v. Carroll, supra; Standard Trust Bank v. Carlson,supra; Himes v. keighblingher, 14 Ill. 469; Warren v. Town ofJacksonville, 15 id. 236; Maule v. Maule, 312 id. 129.) The allegations of the bill may have been sufficient to meet theprima facie case of delivery admitted by the allegation of the execution and recording of the deed and may have been sufficient as a basis for proof of their truth, but they were denied, and it was necessary to the appellant's right of recovery that they should be proved. The burden was therefore upon her to prove the case made by her bill and to show by evidence the circumstances overcoming the prima facie case. (Scott v. Cornell, 295 Ill. 508.) In the latter case the bill alleged *Page 215 that the deed was placed on record on December 24, 1913, which was after the death of the grantor, but was not delivered and was a cloud on the complainant's title, and the court held that the burden was on the complainant to prove these allegations. It was further held that proof that the deed was not in the possession of the grantee until after the grantor's death but was in the possession of a third person, who after the grantor's death delivered it to the grantee, made a prima facie case against the delivery of the deed, and, if there was a delivery of the deed in escrow upon condition, it was incumbent on the appellant to overcome this prima facie case by evidence showing what the condition was and that it had been complied with. Kavanaugh v. Kavanaugh, 260 Ill. 179, was cited in support of this position. In the present case, however, as stated in the court's opinion, there is no evidence that the deed was in Horn's possession before Margaret Tabor's death, and there is no competent evidence that it ever was in Horn's possession either before or after her death, except that he probably had it in his hands at the time he certified to its acknowledgment. The competent evidence shows nothing further than that the deed was executed and acknowledged and after the grantor's death was recorded. The only competent evidence in regard to Peter's taking any papers from Margaret's bureau is that of Oscar Bernard Evans, the appellant's son, who testified that after his grandmother's death, and before her burial, Peter was on the premises; that Horn came over and had a conversation with Peter, and then Peter went into the room, got down to the bureau drawer and got some papers; that it was his grandmother's bureau and she kept her stuff in it; that Peter squatted down at the bureau drawer, which was opened, and took the papers away. The witness was unable to describe the papers, as they were folded. Peter took them across to Horn — went clear across to his building there — but the witness could not see that he handed *Page 216 them to Horn. The papers that he saw Peter take out were just printed papers, folded up. That was all he could tell. He did not see in that box before his grandmother's death.
The only evidence as to the manner of the operation of the land after the execution of the deed is contained in the testimony of David Evans, also a son of the complainant, who testified that he had been familiar with the land all his life, and that "our family, my father and I, jointly farmed that land the last ten years of the lifetime of Mrs. Tabor," and that he had a conversation with Mrs. Tabor, his grandmother, about renting the land and with reference to the payment of rent, and that he always paid her up to her death, in 1924. He never made any payment of rent to Peter Tabor or had any contractual relations with him relative to the use of the land, because he never talked from one year to the other. "We rented it thirty-five years and paid the rent to my grandmother, either grain or money, and that continued up to the time of her death." There is no other evidence of her control of the land, payment of taxes or procuring of insurance on the buildings. The tenants continued for the remainder of her life to occupy and use the land under the terms of the old lease and pay the rent to her as they had done for twenty-five years before the execution of the deed. She and her husband were living together, and there is evidence that he paid the taxes for at least two years and no evidence as to any other years. The evidence does not constitute that clear and convincing proof that the deed was not delivered which is required to overcome the presumption arising from the execution and recording of the deed.
In our opinion the decree of the circuit court should be affirmed. *Page 217