dissenting:
Dissenting, as I do, from the opinion of the majority of the court, I deem it proper to state my views at some length on the principal question involved.
As respects the property conveyed to Mrs. Sayles, I concur in the views of the court, as expressed in the prevailing opinion. It is as to the property conveyed to Mrs. Jones I dissent from the conclusion reached by the majority of the court. In her answer she insists she is the sole owner of a tract of land described in the bill as consisting of three acres, by “virtue of a deed of conveyance thereof made to her by John Cline, * * * on, to-wit, the 19th of February, 1879.” The deed under which she claims the property seems to have remained in the possession of the grantor, with his other papers, until his death, which occurred on or about the 7th of February, 1882, and the insistence is, as the deed was never in fact delivered to the .grantee, no title passed to her. It is satisfactorily proven by the scrivener who prepared the deed at the request of the grantor, and also by other witnesses, the deed to this land was made to Mrs. Jones as a gift, to place her on an equality with his other children, to whom he had given land or personal property, or both. After the execution of the deed he frequently stated he had now made his children equal in respect to the property bestowed upon them, and that the law would divide the remainder of his estate equally between his children. There can be no doubt that was his intention. All his other heirs got property from their father as gifts,' and unless Mrs. Jones is permitted to retain the land embraced in this deed, she would receive a less portion of hex-father’s estate than his other children. The just purpose of the grantor to make an equal division of his property among his children, by conveying this land to Mrs. Jones, ought not to be defeated by any subtle reasoning.
The only question made is, whether the deed took effect notwithstanding it was never actually delivered to the grantee, or to any one for her. It was made upon a meritorious consideration, and was executed with the usual formalities prescribed by law. The grantor acknowledged before the proper officer, he “had signed, sealed and delivered said instrument as his free and voluntary act, fos the uses and purposes therein set forth, ” and there is nothing in all the evidence in this record that shows, or even tends to show, that intention was ever revoked. On the contrary, he repeatedly affirmed it by declaring he had deeded the land to Mrs. Jones to make her equal with his other children in respect to the property given to them.
Undoubtedly the general rule is, a deed takes effect from its delivery and acceptance, and most generally they are mutual and concurrent acts. It would be stating the rule broader than the law will warrant, to say no deed would take effect unless -delivered into the actual possession of the grantee. The books abound in exceptional cases. Where the exception to the general rule is most frequently recognized, is in cases of voluntary settlements, as is the conveyance in this case. In such cases a common rule of the law of general application is, the “first deed and the last will” shall stand. A will is most generally retained by the testator, and so a deed making a voluntary settlement may be retained by the grantor and still take effect. On this subject Chancellor Kent, in Souverbye v. Arden, 1 Johns. Ch. 240, states the law to be in cases of voluntary settlements where the grantor retains the deed, the weight of authority is decidedly in favor of its validity, unless there were other circumstances, besides the mere fact of his retaining it, to show it-was not intended to be absolute. In Bunn v. Winthrop, 1 Johns. Ch. 336, the Chancellor said: “The instrument is good as a voluntary settlement, though retained by the grantor until his death. ” Both of these eases were cited with approval in Bryan v. Wash, 2 Gilm. 557. In Walker v. Walker, 42 Ill. 311, this court, in discussing the same subject, said: “No formal delivery to the grantee in person was necessary. If the grantor in a deed intends, when executing it, to be understood as delivering it, that is sufficient. The intention of the party is the controlling element, as said in Masterson v. Cheek, 23 Ill. 76.” English and other American cases have been examined, and it is seen they are in harmony with the general doctrine here stated, and it will not be necessary to do more than to cite a few of the most important cases that are considered as supporting the rule: Nulrod v. Gilham, 1 P. Wms. 577; Cotton v. King, 2 id. 358; Clavering v. Clavering, 2 Vern. 473 ; Broughton v. Broughton, 1 Atk. 625; Johnson v. Smith, 1 Ves. 314; Wall v. Wall, 30 Miss. 91; Newton v. Bealer, 41 Iowa, 334; Mitchell v. Bryan, 3 Ohio St. 377; Otis v. Beckwith, 49 Ill. 121; Langham v. Wood, 15 Wend. 545; Jones v. Jones, 6 Conn. 111; Crawford v. Bertholf, Saxton’s (N. J.) Ch. Rep. 458; Doe v. Knight, 5 Barn. & Cress. 671. It would he useless to go over these cases again, since they have been fully considered by the courts in this country and in England, and with a uniform concurrence in the doctrine stated.
A principle running through many of the cases on this subject is, the law makes stronger presumptions in favor of the delivery of deeds in cases of voluntary settlements than in ordinary cases of bargain and sale. It is for the reason the parties are supposed to place great confidence in each other. It was so expressly held in Walker v. Walker, supra. In the former class of eases, (that is, cases of voluntary settlements,) the intention of the grantor is most generally allowed to control, and the deed will be regarded as taking effect, or not, according to the intention of the grantor. It has been seen, in the present case the intention the deed should take effect was never revoked by the grantor in his lifetime. His oft repeated wish was, it should take effect and pass the title to his daughter absolutely. The facts of this case bring it clearly within the rule deducible from the cases ut supra. It will also be observed the case being considered has one feature not found in many of the cases on this subject, that makes it a stronger case for the application of the rule. Here the grantee was notified of the making of the deed by the grantor himself, and she accepted the grant by expressing her obligations for the bounty bestowed upon her, and would try to take care of it. Words of similar import, in Kingsbury v. Burnside, 58 Ill. 310, were held to constitute an acceptance of the deed by the grantee, though the grantee died before taking it into actual possession. The reason for the decision in such cases is, assent is the principal element, and the taking of the deed into possession is not indispensable, but is only_ evidence of assent and acceptance. There being a clear intention manifested by the grantor in making the deed it should take effect at once, and that she should have the possession of the land on his death, or ■ sooner if she would live on the premises, which intention was never revoked, and there having been an acceptance of the deed by the grantee in the- lifetime of the grantor, it would seem to follow, on principle as well as upon authority, the deed was effectual to pass the title to the grantee, although the grantor retained possession of the deed until his death. That he retained the deed for the benefit of the grantee sufficiently appears from the facts and the circumstances of the case. I am of opinion the decree should be affirmed.
Mr. Justice Walker : I fully concur in all that is said in this dissenting opinion.