dissenting:
On the facts presented in the record I cannot concur in the foregoing opinion. I think the deeds were delivered.
The rule is, that a deed does not take effect unless it is delivered by the grantor during his lifetime, either directly or in escrow. Such delivery “may be by acts without words or words without acts, or both, and anything which clearly manifests the intention of the grantor that a deed shall presently become operative and effectual, that he loses control over it and the grantee is to become possessed of the estate, constitute's a sufficient delivery.” (Hill v. Kreiger, 250 Ill. 408.) The delivery of a deed is essentially a matter of intent. The real test in each case is whether the grantor, as shown by his acts or words, or both, intended delivery. Each case must therefore be adjudged by its own facts and circumstances. (Potter v. Barringer, 236 Ill. 224; 9 Am. & Eng. Ency. of Law,—2d ed.—154, and cases cited.) In determining the question whether a deed of voluntary settlement has been delivered, the grantor’s intention to vest the title in the grantee is of more importance than the mere manual possession of the deed. (DeGraff v. Manz, 251 Ill. 531; Riegel v. Riegel, 243 id. 626; Baker v. Hall, 214 id. 364.) A deed of voluntary settlement may therefore be effective to vest the title though it is retained in the grantor’s possession until his death, if other circumstances do not show an intention contrary to that expressed in the deed. The presumption in favor of the delivery of a deed in case of a voluntary settlement is much stronger than in an ordinary case of bargain and sale, and the burden of proof is upon one claiming adversely to show that there was no delivery. (White v. Willard, 232 Ill. 464; Hill v. Kreiger, supra; Chapin v. Nott, 203 Ill. 341; Valter v. Blavka, 195 id. 610.) The fact that a deed in a voluntary settlement reserves a life estate in the grantor raises a strong presumption that he intended that the title should immediately vest in the remainder-men, as otherwise there would be no necessity for the reservation. Hill v. Kreiger, supra; Riegel v. Riegel, supra; Baker v. Hall, supra; Valter v. Blavka, supra.
John S. Stevens attempted to give these deeds to the banker, Mansfield. At the latter’s suggestion they were put in Stevens’ deposit box. It would appear from this record that Stevens by so doing did not intend to make any change in the legal effect of his acts,—that is, he intended the putting of the deeds in the box to have the same effect as if they had been placed in Mansfield’s hands. The change as to where the deeds were placed was intended merely for convenience and not as changing the character of the transaction. If Mansfield had taken and kept the deeds, as requested, until after Stevens’ death, then surely this would have constituted delivery, unless the words endorsed on the back of the envelope containing the deeds, “subject, however, to his call at any time before his death,” would defeat such delivery. There is no testimony that Stevens knew these wqrds were on the envelope or had caused them to be placed there or intended that the deeds should be kept by Mansfield on any such condition. On the contrary, all he said to Mansfield indicated that the deeds were to be left with him unconditionally; that he was trying by his acts to make a valid delivery of the deeds in escrow; that the very purpose of leaving them with a third party was to constitute a legal delivery.
It is true, Stevens executed certain leases to his sons after executing these deeds. In my judgment these leases were the mere carrying out of the provisions of the deeds as to the one-third proceeds going to the grantor. The fact that there is evidence tending to show that Stevens paid the taxes while he was living and remained in possession of the property is not inconsistent with the delivery of these deeds. Neither is the fact that he made a deed to coal rights and entered into certain oil leases. If it was his intention to deliver the deeds and he actually performed acts sufficient to constitute a delivery, the deeding of the coal rights and leasing of the oil rights could not re-invest him with the title. Potter v. Barringer, supra.
“A voluntary settlement, fairly made, is always binding in equity upon the grantor, unless there be clear and decisive proof that he never parted, nor intended to part, with the possession of the deed; and even if he retains it, the weight of authority is decidedly in favor of its validity, unless there be other circumstances, besides the mere fact of his retaining it, to show it was not intended to be absolute.” (Souverbye v. Arden, 1 Johns. Ch. 240.) These words of Chancellor Kent are very much in point on the questions here involved. The rule laid down by him is, in my judgment,- supported by the great weight of authority in this and other jurisdictions.
Mr. Justice Farmer, also dissenting.