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may have been correct instructions it is impossible to tell which ones the jury followed. An instruction no more harmful than this was held reversible error on a very similar question in Rich v. Naffziger, 248 Ill. 455.
Counsel for appellee insist that there was a variance between the amended declaration and the deed to the church trustees from John Hardy, their argument being that the amended declaration states the description as beginning at the middle of the Kaskaskia road while the deed begins the description at the quarter corner, and that the evidence tends to show that the quarter corner was not at the middle of the road. While there is some evidence introduced by appellants that tends to show that the center of the Kaskaskia road was not the west line of said quarter section, the great weight of the testimony introduced shows that the two coincide. In the present condition of the record the court should have sustained the objection of counsel for appellee to the introduction of the plat tending to show that the center of the road and the quarter section line were not coincident.
Counsel for the appellee further contend that the court erred in refusing to instruct the jury that the title to the strip of land in dispute had reverted to the original grantor under the following provision contained in the deed from said John Hardy and wife to the church: “The above described land being deeded in trust that said premises shall be used, kept, maintained and disposed of as a place of divine worship for the use of the ministry and membership of the Methodist Episcopal Church in the United States of America, subject to the discipline and ministerial appointment of said church as from time to time authorized and declared by the general conference of said church and the annual conference in whose bounds the said premises are situate.” It is argued by counsel for appellee that this provision of the deed is a condition subsequent, and that as the strip here in dispute had not been used for church pur
poses but had been cultivated ever since the deed was made, the grantor, John Hardy, considered the condition subsequent broken and had re-entered upon said land and taken possession of it. It is frequently difficult to determine whether a certain provision in a deed annexed to a grant of real property constitutes a condition, covenant, restriction, limitation or trust imposed on the property. If from the language, however, it is doubtful whether the clause is a condition or a covenant it will be construed to be a covenant. (Koch v. Streuter, 232 Ill. 594; 2 Devlin on Real Estate,—3d ed.—sec. 970b.) A covenant is an agreement duly made between the parties to do or not to do a particular act. (2 Words and Phrases, 1691, and cases cited.) Conditions subsequent, having the effect of divesting estates already vested, are not favored in law and always receive a strict construction. (Springfield and Northeastern Traction Co. v. Warrick, 249 Ill. 470.) There is nothing in the form of the language in the deed in question to indicate that it was intended that the conveyance was upon a condition subsequent. No words or terms show a condition of any kind and no words of equivalent meaning are found in the deed. There is no re-entry clause. These are the usual indications of an intent to create a condition subsequent. (Gallaher v. Herbert, 117 Ill. 160; Downen v. Rayburn, 214 id. 342; 3 Ann. Cas. 36, and cases in note; see Brown v. Concord, 33 N. H. 285; Farnham v. Thompson, 34 Minn. 330.) Under the authorities we think the provision in the deed in question must be considered a covenant and not a condition subsequent.
Other questions are raised in the briefs, which, in view of the conclusions we have reached, need not be considered.
For the errors indicated the judgment of the circuit court must be reversed and the cause remanded.
Reversed and remanded.
Dollie Little, Appellee, vs. Solon Eaton et cl.
Opinion filed April 22, 1915.
1. Deeds—delivery is essential to render a deed operative as a conveyance. The delivery of a deed is an essential part of its execution and is indispensable to render it operative as a conveyance, and in determining whether there has been a delivery the intention of the grantor is the controlling element.
2. Same—when presumption of delivery of voluntary conveyance cannot prevail. The presumption in favor of the delivery of a voluntary conveyance from father to daughter cannot prevail where the evidence shows that the father kept control of the deed for thirteen years, then made a will giving her a life estate, only, and subsequently decided to give the land absolutely to a third party and attempted to do so.
3. Same—when rule as to presumption of acceptance of deed does not apply. The rule that an acceptance, by the grantee, of a voluntary conveyance which is of benefit to the grantee and imposes no burdens will be presumed even though the grantee had no knowledge of the existence of the deed until after the grantor's death, does not apply where the grantor did not intend to confer any benefit upon the grantee but merely used the conveyance as a means of transferring title to a third party by having the deed recorded after the grantee had executed a quit-claim deed to the third party without knowledge that the other deed was in existence.
4. Same-ordinary quit-claim deed does not pass an after acquired title. An ordinary quit-claim deed does not pass an after acquired title unless there are words in the deed expressing an intention to convey it, and if at the time the deed is executed the grantor has no title to the land and has no knowledge that there is in existence an unrecorded deed made by her father conveying the land to her the quit-claim conveys nothing, even though the father subsequently gives the unrecorded deed to the grantee in the quit-claim deed for the purpose of having it recorded concurrently with the quit-claim deed as a means of transferring title to such grantee; and if the daughter subsequently acquires title to the land by will she is entitled to have the two deeds removed as clouds upon such title.
APPEAL from the Circuit Court of Ogle county; the Hon. Richard S. FARRAND, Judge, presiding.
D. W. BAXTER, and S. V. WIRick, for appellants.
Franc Bacon, and J. C. SEYSTER, for appellee.
Mr. CHIEF Justice CARTWRIGHT delivered the opinion of the court:
The appellee, Dollie Little, filed her bill in the circuit court of Ogle county, making the appellants, Solon Eaton and W. B. McHenry, (the latter the executor of the last will and testament of Daniel W. Grimes, deceased,) defendants, and asking the court to remove as clouds upon her title to a tract of land containing about thirty-seven acres, a deed made by Daniel W. Grimes to her and a deed from her to the appellant Solon Eaton. The defendants answered, and the issues were referred to the master in chancery to take the evidence and report the same, with his findings. The parties agreed that the master should take and report the evidence, only, and that was done. The chancellor, upon consideration of the evidence taken before the master and oral testimony heard in court, granted the relief prayed for, and this appeal was prosecuted to reverse the decree.
Daniel W. Grimes owned the land in controversy, and the complainant, Dollie Little, was his adopted daughter and was the wife of Joseph Henry Little. The wife of Daniel W. Grimes died on June 4, 1899, and on October 6, 1899, shortly before his second marriage, he made and acknowledged a warranty deed of the land to the complainant for the expressed consideration of $500. He retained possession of the deed and married his second wife on October 18, 1899. In the summer of 1912 he delivered the deed to W. B. McHenry, his attorney, for safe keeping until he should give further instructions concerning it. On September 21, 1912, he made his last will and testament, by which he devised the same land to the complainant for and during her natural life, with remainder to her children in
equal shares. About October 20, 1912, he told McHenry that he had decided to give the land to Solon Eaton for the consideration that Eaton should take care of his father, Frank Eaton, during his lifetime. Frank Eaton was a son-in-law of Grimes and Solon Eaton was his grandson. McHenry advised a change of the will, but Grimes directed him to make a deed from the complainant to Solon Eaton for the purpose of changing the terms of the will. In pursuance of his instructions McHenry prepared a quit-claim deed expressing a consideration of one dollar and other good and valuable considerations, dated October 31, 1912, from the complainant and husband to Solon Eaton. Eaton took the deed and went to the residence of the complainant, laid the deed on a table and told her they had sent him over there for her to sign it. She did not know of the existence of the deed to her and did not know that she had any interest in the land or what land was described in the deed, but she thought it was her father's land and understood that he wanted her to sign the deed. She and her husband signed and acknowledged the deed and it was delivered to Eaton. Grimes directed McHenry to have the deed to the complainant and the one from her and her husband to Eaton put on record at the same time, and the deed to the complainant was only to be filed for record on condition that the complainant and her husband executed the deed to Eaton. The deeds were filed at the same time. Grimes died on February 2, 1913, and his will was admitted to probate.
The delivery of a deed is an essential part of its execution and is indispensable to render it operative as a conveyance. In determining whether there has been a delivery the intention of the grantor is the controlling element. A delivery may be made by an act without words, by words without an act, or by both words and act, and where an intention that a deed shall presently become operative as a conveyance and the title shall pass is manifested, an actual
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