delivered the opinion of the court;
The evidence relied upon by appellees to prove non-delivery of the deed to Prank B. Calkins consists of the testimony of their daughter, Daisy Dickman, and her husband, Herman Dickman, and of appellees’ son Alanson Calkins, to the effect that Frank B. Calkins stated to them at various times that he was to get a deed to the north forty acres of the farm after the death of his parents if he paid his father $1500 and took care of his parents during the remainder of their lives; also the testimony of Daisy Dickman, to the effect that she was present at her father’s house when her father brought the deed home, and that he told Frank' that he could have the deed after the death of the parents if he performed the obligations imposed on him by the deed and made the cash payments, and that Samuél W. Calkins then placed the deed in his trunk and kept it there, without delivering it to Frank, until after the death of the latter.
A number of witnesses testified, on behalf of appellants, that Samuel W. Calkins stated to them that he had given a deed to the north forty acres of his farm to Frank B. Cap kins, and that Frank owned the land. One of these witnesses was the tax assessor of the township in which the land was situated; another a man named West, who appears to be entirely disinterested; and another one of - the creditors of Frank B. Calkins who had established a claim against his estate. Emerson Calkins also testified to the same admission by Samuel W. Calkins.
Although the testimony of Alanson Calkins and Daisy Dickman, 'witnesses for appellees, was against their legal existing interest as heirs of Frank B. Calkins, yet their expectant interest as children of appellees, to whom the land would descend in case of the death of appellees without otherwise disposing óf the property, was apparently regarded by them as more valuable than their interest in the land as heirs of Frank B. Calkins, because as heirs of the latter their interest was subject to the debts established against his estate, which nearly equaled the value of the interest in the land conveyed to him by his deed from Samuel W. Calkins and wife. If the deed stands they get practically nothing from the land. If it is set aside they may succeed to a substantial part of the realty.
Daisy Dickman and Alanson Calkins were parties defendant. Prior to the time they testified, a decree of default had been entered against them, by which it was ordered that the bill should stand as confessed by them. It is apparent from their testimony and from that of Herman Dickman that each of the three, whatever their interests in the controversy may have been on the face of the record, in fact reasoned that their interests would be better served by having the deed canceled and set aside than by having it adjudged a valid conveyance. It is evident from the testimony of all the witnesses who were cognizant of the facts, that the arrangement was that Frank B. Calkins was to have the land after the death of his parents. The pivotal question on this branch of the bill is whether the deed was delivered. For the purpose of establishing, by each of the three witnesses for the complainants named above, that there was to be no delivery of the deed until after the death of the parents, and that there was, in fact, no delivery of the deed, recourse was had to leading and suggestive interrogatories, and appellants' preserved their rights in reference thereto. For instance, Herman Dickman, after testifying to a conversation with Frank B. Calkins in which he said Frank told him he was to have the deed after the old folks’ death and that Frank never told him whether or not his father had delivered the deed to him, was asked: “Q.. Do you remember if you ever saw a deed to this forty acres of land?—Á. Mrs. Calkins showed me a deed, handed it up and said it is Prank’s deed. Q. When was it to be his?—A. After the old folks’ death. Q. Was that statement made there at that time by the old man to you?—A. Yes, sir.”
Daisy Dickman testified that the deed to her and the deed to Prank were brought home by the father on the same day; that her deed was delivered to her; that her father told Frank that “if he staid at home and took care of him and paid him that $1500, when my father and mother was gone he should have that forty acres.” Following the testimony which we have just quoted, this witness was asked: “Q. Was that deed to be given up to that time?—A. Not until after the death of my father and mother. Q. Then it was to be given up?—A. Yes, sir.” It further appears from the testimony of this witness that her deed, which she says was delivered, and Prank’s deed, which she'says was not delivered, were thereafter both kept in the father’s trunk. The objectionable method pursued in eliciting portions of the testimony from complainants’ witnesses lessens the weight of those portions thereof.
Emerson Calkins, the administrator, testified that he was present on one occasion in the office of an attorney at a time when Prank B. Calkins contemplated borrowing money on his interest in this land, and he swears that Prank at that time had the deed in his possession, but that the deed was folded up and that the witness merely saw the outside of it, or, as he expressed it, “the head of the deed.” It is shown, however, that Prank B. Calkins never owned or claimed to own ahy interest in land other than the interest which it is claimed he owned in this forty-acre tract. Appellees urge that it does not appear that this was the same deed executed by Samuel W. Calkins, for the reason that the witness did not read it and therefore could not know its contents. He did not have an opportunity to examine the deed at the time he testified and state from that inspection whether it was the same deed that he had seen in the possession of Frank B. Calkins, as Samuel W. Calkins had delivered the original deed to one of his attorneys shortly before the bill herein was filed, and the same was, before the witness testified, lost. We think, however, in view of the fact that Frank B. Cal-kins could have had possession of but one deed to himself, that it is a fair conclusion, if the testimony of Emerson Cal-kins is to be believed, that Frank B. Calkins had possession of that deed at the time in question when he was seeking to borrow money.
Samuel W. Calkins, one of the appellees, was called in rebuttal. It was proper for him to give his version of certain of his own conversations and transactions which had been testified to by witnesses called in behalf of the defendants. (Hurd’s Stat. 1903, chap. 51, sec. 2.) This witness, however, testified generally in support of the averments of the bill. His testimony, other than in reference to the specific conversations and transactions above mentioned, was improper and should not have been taken.
Such testimony of this witness, plainly incompetent as it was, could have been taken by appellees only in view of the possibility that the master, though aware of its incompetency, might unconsciously be influenced thereby, or that it might present to the master a complete history of the various transactions, so that he could see that the testimony of the several witnesses for complainants was harmonious therewith.
In considering the reasonableness of the evidence of those witnesses whose testimony tended to show that the deed was not to be delivered until the death of both parents, it is to be observed that the contract, as disclosed by the testimony of such witnesses, did not, in fact, provide for any delivery of the deed to Frank B. Calkins at all. It was not left with any person to be passed over to him, nor was he authorized in any manner to obtain possession of it, if their testimony be true.
All the circumstances surrounding the transaction between Samuel W. Calkins and Frank B. Calkins point to the delivery of the deed. The deed itself indicates the intention of the grantors to deliver it during their lifetime. A life estate is reserved to the grantors. If it had not been the intention to deliver the deed during the lifetime of the grantors, that reservation was wholly unnecessary and no purpose would be served by inserting it in the deed. The deed was recorded immediately after its execution, which is prima facie evidence of its delivery. (Valter v. Blavka, 195 Ill. 610; Clark v. Harper, 215 id. 24.) The deed was placed by Samuel W. Calkins in a trunk where Frank B. Calkins kept his valuable papers. The original bill made no reference to the claim that the deed had not been delivered. That charge was inserted as an amendment several months after the original bill had been filed, after the issues had been made up and during the taking of testimony before the master. These circumstances, when taken in connection with the admissions made by Samuel W. Calkins, and the fact that the grantee knew of the execution and recording of the deed and its terms immediately after it was recorded and assented to those terms and entered upon the performance of the obligations imposed upon him thereby, raise a strong presumption in favor of the delivery of the deed, and we are of opinion that such presumption is not overcome by the evidence found in this record. We think the master’s finding on this issue was clearly wrong, and that the decree, in so far as it is based on such finding, is erroneous. While it is true that a bill may be filed with a double aspect and that the various parts thereof need not be consistent with each other, (Henderson v. Harness, 184 Ill. 520,) still, where a bill is first filed upon one theory and later an amendment is added which, if the allegations of fact therein be true, entitles the complainant to the same relief sought in the original bill but upon grounds not disclosed by the original bill, and where the allegations of fact set up by the amendment, if true, must have been fully known .to the complainant at the time of the filing of the original bill, the omission to aver such alleged facts at that time is a circumstance to be taken into consideration in determining whether or not the statements of fact contained in the amendment are true, when they are denied by the answer, no explanation for their omission from the original bill appearing in the record.
We are of the opinion, from all the evidence in the case, that the theory that this deed was never delivered to Frank B. Calkins is one that had its origin at a date subsequent to the filing of the bill herein, and that it was born of the desire of Samuel W. Calkins, Alanson Calkins, Daisy Dickman and Herman Dickman, her husband, to prevent the application of the property involved in this suit to the satisfaction of the debts of the deceased son and brother.
It remains to determine whether other findings of the ma.ster are sufficient to support the decree.
The consideration expressed in the deed is $1000 and future support of the grantors during the remainder of their lives. It is not claimed that there was any fraud practiced on the grantors by the grantee in obtaining the execution of the deed, therefore proof of the failure of the grantee to pay the $1000 would not be ground for avoiding or canceling the deed. Rendleman v. Rendleman, 156 Ill. 568.
Neither can the deed be avoided or set aside for the reason that the grantee has been prevented, by reason of his death, from carrying out his contract to furnish support to the grantors during their lifetime, because where, as here, he complied with the contract up to the time of his- death, there can be no presumption of fraud on the part of the grantee. Stebbins v. Petty, 209 Ill. 291; Seymour v. Belding, 83 id. 222.
The grantee in the deed assumed the payment of a mortgage on the land. It was shown that the mortgage had not been paid. Failure to pay the mortgage assumed could not affect the conveyance of the land. In case the grantors were compelled to pay the indebtedness, they would have a remedy over against the grantee and could resort to the land for reimbursement. That, however, would be the extent of the relief to which they would be entitled.
The complainants in the original bill failed to establish any sufficient ground for avoiding the deed to Frank B. Calkins, and the decree was therefore erroneous.
It was proved before the master that there was a deficiency in the personal estate of Frank B. Calkins, and the administrator, by his cross-bill, sought to have the land sold subject to the life estate of Samuel W. Calkins and wife and subject to the mortgage liens thereon. Inasmuch as the complainants in the original bill did not establish any right to the relief sought by them because the title to the land passed to Frank B. Calkins by the deed of October 13, 1897, subject to the life estate of the grantors and the mortgage liens on said land, the cross-complainant was entitled to the relief sought by his cross-bill.
If the grantors in the deed to Frank B. Calkins have been damnified by the fact that the conditions of the deed which were to be performed by him have not been complied with since his death, and by the fact, if such be the fact, that they cannot be complied with in the future, they may, as pointed out in Campbell v. Potter, 147 Ill. 576, file claims against the estate of the deceased in the county court and have such damages there allowed.
The decree of the circuit court will be reversed and the cause will be remanded to that court, with directions to dismiss the original bill, as amended, for want of equity and to grant the relief sought by the cross-bill.
Reversed and remanded, with directions.