delivered the opinion of the court:
The most important question arising on this record is whether the deeds to the property in question were, after their execution, delivered by the grantor to a third person in escrow, to be by him delivered to the grantees after the death of the grantor.
If the grantor, by his act of delivery, loses all control over the instrument, and by it the grantee is to become possessed of the estate, then there is a sufficient delivery. (Bryan v. Wash, 2 Gilm. 557; Cline v. Jones, 111 Ill. 563.) The question is to be determined largely by the intention of the grantor, which may be ascertained by his acts and declarations, and by the circumstances attending the execution of the deed and its delivery to a third party. (Masterson v. Cheek, 2d Ill. 72; Walker v. Walker, 42 id. 311.) In Byars v. Spencer, 101 Ill. 429, it is said (p. 433): “The question as to what acts are necessary to constitute a sufficient delivery to render a defed operative and to pass the title to the land has been the subject of much discussion in this court. * * * It may be delivered to the grantee or to his agent. Nor is any particular form or ceremony necessary to constitute a sufficient delivery. It may be by acts or words, or both, or by one without the other; but what is said or done must clearly manifest the intention of the grantor and of the grantee that the deed shall at once become operative to pass the title to the land conveyed, and that the grantor loses all control over it.”
The question of delivery is one both of law and of fact. From the detail of such facts and attending circumstances is- to be determined the legal question as to whether such acts and declarations constitute a legal delivery. It is said, in a case like this the law makes stronger presumptions in favor of the delivery of the deed than in an ordinary case of bargain and sale, for the reason that it was an attempt on the part of the grantor to make a voluntary settlement. That there are stronger presumptions in such cases has frequently been recognized by this court. (Bryan v. Wash, supra; Reed v. Douthit, 62 Ill. 348; Walker v. Walker, supra; Cline v. Jones, supra.) Such settlements, fairly made, are binding on the grantor, unless there be clear and decisive proof that he never parted or intended to part with the possession of the deed; and even if he retained it, the weight of authority is decidedly in favor of its validity, unless there be other circumstances, besides the mere fact of his retaining, to show that it was not intended to be absolute. Souverbye v. Arden, 1 Johns. Ch. 240; Bunn v. Winthrop, id. 329; Scrugham v. Wood, 15 Wend. 545; Otis v. Beckwith, 49 Ill. 121; Cline v. Jones, supra; Perry on Trusts, sec. 103.
It follows, therefore, as heretofore stated, that the intention of the grantor is the controlling element. There are some disputed questions of fact in the record. The testimony was in a large degree oral and heard by the chancellor in open court, and, as we have frequently said, where such is the case we will not disturb the decree of the trial court, in so far as it determines questions of fact, unless there is in the finding of the trial court palpable error. Baker v. Rockabrand, 118 Ill. 365; Johnson v. Johnson, 125 id. 510; Coari v. Olsen, 91 id. 273; Towle v. Wadsworth, 147 id. 80.
In the absence of the testimony of the custodian who had possession of these deeds for a time, it is largely a matter of presumption as to what directions were given at the time the deeds were deposited by the grantor, or under what conditions or instructions they were placed with Dewey, the custodian. Considering all the attending circumstances, and the fact that they were afterwards taken away by Shults, the grantor, and subsequently destroyed by him, it was not error for the trial court to reach the conclusion it did that there was ho intention on the part of the grantor to lose control of the deeds, or that they should become operative and effective so as to pass title. On the contrary, it is apparent that the deeds were left for a time with Dewey because of the convenience for safe keeping. The facts that the grantor during this time continued to exercise acts of ownership and authority over the premises, and that during this time he also sold a portion thereof and proposed to sell the remainder, are inconsistent with the theory of an intentional delivery, operative and effectual to pass title to appellant. . -
In the case of Stinson v. Anderson, 96 Ill. 373, the grantor, prior to his second marriage, executed a deed to the children of his former marriage for certain lands, and left it with a magistrate before whom it was acknowledged, to be delivered to them after his death. At the time it was left he said to the magistrate: “I want you to take it and take care of this deed for me. If I want it I will call and get it. If I die or anything serious should happen to me I want you to deliver it to my children, if of age. If they are not of age, then to deliver it to their guardian, for I want my three children to have the benefit of their mother’s labor.” Afterwards the grantor mortgaged the land to secure borrowed money. After his death the question arose whether there was a sufficient deliver)' of the deed to the magistrate to pass title to the three children. This court held in that case there was no sufficient legal delivery of the deed, for the reason a future control was retained over it by the grantor, and these subsequent acts indicated that the delivery to the magistrate was not absolute and the deed should not pass entirely beyond his control.
As we have said, it is not apparent from this record what were the conditions under which the deeds were deposited by the grantor with Dewey, the custodian. After the deeds were executed before the notary public, it appears it was some short time before they were left with Dewey, the custodian, and the grantor might easily have changed his mind, after his conversation with the notary, as to the conditions upon which he intended to deposit the deeds with the custodian.
It is apparent from an examination of this record that it was proper for the circuit court to find there was no sufficient delivery of the deeds to pass title of the lots in question to appellant, and to deny him relief on his cross-bill añd enter the decree dismissing it. It is said that even though this be true, the original bill filed by appellee does not entitle her to relief. The purpose of the original bill is to set aside a cloud upon her title. In Rigdon v. Shirk, 127 Ill. 411, it is said (p. 412): “A cloud is said to be the semblance of a title, either legal or equitable, or a claim of an interest in lands, appearing in some legal form, but which is, in fact, unfounded, or which it would be inequitable to enforce. If the claim sought to be removed is valid, and may be enforced either at law or in equity, it cannot be said to be a cloud.” In the former bill filed, in which appellant claimed title to these lots, and which was dismissed without a hearing on its merits, the allegations therein tended to depreciate the title of appellee, or to interfere with the sale of the property by reason of such- proceedings appearing upon abstracts of title thereto, and it was a proper subject of inquiry by a court of equity as to whether such proceedings were-a cloud on her title. This former bill was a declaration of title in appellant, and remained on file in the clerk’s office of Cook county, notice to all the world that appellant claimed to have some title in these premises. It was a semblance of title, but, as we have found in this proceeding, it could not be enforced either at law or in equity, and therefore it was a cloud upon appellee’s title, and it was proper for the circuit court to enter the decree granting the relief asked in the original bill.
We find no error in the decree of the circuit court, and it is affirmed.
Decree affirmed.