delivered the opinion of the Court:
This was a bill in equity, brought by Clark W. Wormley against his wife, Lorinda B. Wormley, to compel the conveyance of certain lands in Kendall county, and certain town lots situated in the city of Aurora, which property complainant alleges the defendant holds in trust for him. The first tract involved was the east half of the north-east quarter of section 10, town. 37 north, range 8 east of the third principal meridian, the undivided half of which the court decreed defendant should convey to complainant. This land, as appears from the evidence, was originally a part of a settler’s claim, consisting of 160 acres, held by one King. As early as 1838, complainant purchased of King his claim, for $50. The other 80 acres he disposed of before the land came into market, and in 1840 he went to the land office in Chicago and entered the 80 in question in the name of Lorinda B. Wormley, his wife, paying therefor -the government price, $1.25 per acre, in whose name a patent subsequently issued.
Thus far there is no dispute between the parties; but in regard to the contract which was made between the parties when the land was entered, and in regard to whose money paid for the land, there is a radical conflict in the evidence. The complainant says his wife furnished $70 of the money and he furnished $30, and an agreement was made that the title should be taken in her name, and she should hold it in trust for him to the extent of one-half interest, which she agreed to convey on request. On the other hand, the defendant testified, in substance, that she furnished the money, $100, to enter the land, which she had earned in New York, before they were married, teaching school; that the entry was made in her name because she furnished the money to pay for the land. She absolutely denies any agreement to convey to complainant any part of the land. The parties, by their joint labor and earnings, improved the land, and resided upon it as a home until a short time, before the filing of this bill.
Aside from the fact that the land was assessed in the name of complainant, and proof of defendant’s declarations to the effect that complainant owned the farm, there is no other proof bearing on the transaction. We do not regard the proof sufficient to sustain the decree. The title to this land has stood in the name of defendant, of record, unchallenged by complainant for a period of nearly forty years. He concedes that his wife paid nearly three-fourths of the purchase money for the land, when it was originally purchased. Under such circumstances, before a title of such long standing should be impeached, the evidence to produce such a result should be clear and uncontradicted. Such, however, was not the evidence in this record. The complainant swears to one state of facts, and the defendant to another and a different state of facts. If the title to land could be taken from one and transferred to another on such conflicting evidence, all security in titles to real estate would be at an end. Nor can the loose declarations made by the defendant to different persons, to the effect that complainant owned the Kendall county farm, be held sufficient to set aside a deed of such long standing. If these declarations prove anything, they establish the fact that complainant owns and is entitled to thev whole -80-acre tract, which he does not pretend. He only claims an undivided half, and yet the proof, if good for anything, establishes his title to the whole.
This kind of evidence, when introduced with the view to impeach a title to real estate, is weak and unreliable, and should be received and acted upon with great caution. As to this 80-acre tract, we regard the decree erroneous.
We now come to the other 80-acre tract,—the east half of the south-east quarter of section 3, township 37, range 8 east of the third principal meridian,—which was a part of the home farm, and joined the other 80 which we have just considered. This tract of land was entered, by complainant, in his own name, on the 15th day of February, 1843, and paid for from his own funds. In October, 1860, complainant, being sick, at the request of his wife deeded this land to one Lysander Breese, a nephew of defendant, and placed the deed among his own papers, with the understanding between him and his wife, that in case of his death the deed should then be delivered to. Breese, who should convey to the defendant. The complainant did not, however, die, as was anticipated, but, notwithstanding this, in September, 1861, the defendant took the deed from his papers, and carried it to Breese, who, at her request, made a conveyance of the land to her, and she then placed both deeds on record.
The court, on the hearing, set aside these two deeds, and, as we think, properly. The deed from complainant to Breese was never delivered, and hence no title passed. It is true, the deed was passed into the hands of Breese, the grantee, but this was not with the knowledge or consent of the grantor, and hence his rights were not affected. The delivery of a deed, to be valid, must be with the assent of the grantor. Where, as in this case, a deed is taken from the possession of the grantor, without his knowledge or consent, and placed in the hands of the grantee, no title to the land described in the deed will pass, for the reason that there has been no valid delivery.
This brings us to a consideration of the decree in relation to the Aurora property, which required the defendant to convey one-half of same to complainant.
It appears, from the evidence, that in 1849 complainant purchased a one-fourth interest in a tract of land, consisting of 112 acres, in Sugar Grove, in Kane county, which belonged to the estate of Seneca C. Breese. The defendant also acquired a one-fourth interest in the tract of land, as one of the heirs of Breese. On the division of the land between the heirs of Breese, 56 acres was set off to Wormley and his wife. Subsequently, they traded this 56 acres to L. C. Breese for 80 acres which he owned in Sugar Grove—the title to which was made to the defendant. From rents derived from this land and from the home farm, the property in Aurora, known as the “Lincoln avenue property,” was purchased, and title taken in the name of defendant. Afterwards, the 80-acre tract in Sugar Grove was sold for $4800. From the proceeds of this sale the Broadway property, in Aurora, was purchased, in the name of defendant, and the Lincoln avenue property, as well as the Broadway property, was improved with money derived from the sale of the 80-acre tract, last named.
It is quite apparent, from the testimony, that complainant contributed at least one-half of the amount which was invested in the Aurora property in purchasing and improving it. Was the Aurora property intended as an advancement to the defendant? If it was, then, although an equal undivided half of the property was acquired from complainant’s own means, he can not recover it back from the defendant.
Where a man purchases real estate, and has the title made to a wife or child, the presumption of law is that the conveyance is intended as an advancement. But that presumption may be overcome by evidence. Perry on Trusts, sec. 147, states the rule, as follows: “Whether a purchase in the name of the wife or child is an advancement or not, is a question of pure intention, though presumed, in the first instance, to be a provision and settlement.” See Hill on Trustees, 97; Smith v. Strahan, 16 Texas, 314; same case, 25 id. 103; Taylor v. Taylor, 4 Gilm. 303; Bay v. Go ole, 31 111. 336.
We have examined the record in this case with much care, and we are satisfied that complainant neYer intended the Aurora property as an advancement to his wife. At the time the Aurora property was purchased, the defendant was well provided for. The title to 240 acres of valuable land was then in her name, while her husband, the complainant, was only in moderate circumstances, and did not hold much property at the time in his own name. Situated as they then were, it is unreasonable to believe that he would provide so liberally for his wife, to the neglect entirely of himself, when at the time she was well provided for. He testified, and his evidence seems corroborated by other circumstances, that no advancement was intended, but that defendant agreed to hold the title to one-half of the property for him, and convey it at such time as he might request.
But it is said, that a contract of this character, between husband and wife, can not be enforced in a court of equity. Whether a contract from a married woman to her husband, to convey lands, can be enforced in equity, we shall not stop to consider; but where the facts are as here established, there is ample authority for a court of equity to grant relief. Livingston v. Livingston, 2 Johns. Ch. 537; Cotton v. Wood, 25 Ia. 43; Adlard v. Adlard, 65 Ill. 212; Stone v. Wood, 85 id. 603.
It is, however, contended, that complainant is guilty of laches, and on that ground he can not obtain relief. It will be observed that complainant has been in the possession of the property, and his right to use and possess the same does not seem to have been disputed until a short time before the .filing of the bill. He had every reason to believe that defendant would convey to him on request, as she had agreed. Under such circumstances, we do not understand that laches can be imputed to complainant.
The decree will be reversed as to the 80 acres of land entered in the name of complainant on the 15th day of February, 1843, and in all other respects it will be affirmed.
Decree reversed in part and in part affirmed.