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physical transfer is unnecessary. If the grantor intends, when executing it, to be understood as delivering it, that is sufficient; and the presumption in favor of the delivery of a deed is stronger in case of a voluntary settlement than in a case of bargain and sale. In the case of a voluntary conveyance the retention of the deed in the possession of the grantor will not destroy its effect as a deed unless there are circumstances showing it was not intended to be absolute and to operate as a present conveyance, the grantor's intention to vest title in the grantee manifested by making and acknowledging the deed being regarded as of more importance than the mere manual possession of the deed. (Walker v. Walker, 42 Ill. 311; Oliver v. Oliver, 149 id. 542; Rodemeier v. Brown, 169 id. 347; Riegel v. Riegel, 243 id. 626; Hoyt v. Northup, 256 id. 604.) The deed to the complainant was made as a voluntary conveyance, but any presumption of an intention of the grantor to vest title in her thereby was conclusively rebutted by the facts. After retaining the deed in his possession or that of his attorney for about thirteen years he made his will, devising only a life estate to the complainant with remainder to her children, so that he then entertained no intention to give her the fee. Shortly afterward he resolved to give the land to Solon Eaton, so that the complainant could not have title either by the deed or will. Contrary to the advice of his attorney he determined to have the complainant make a deed, and gave instructions that the deed to her should only be put on record concurrently with a deed from her to Solon Eaton. He did not at any time have an intention that the deed to the complainant should be then operative as a conveyance by which she was to obtain title, but it was only to be used as a means of transferring title to Solon Eaton.
Generally speaking, as applied to persons capable of contracting, a delivery is only complete upon acceptance by the grantee. The acceptance of a deed of voluntary settlement which is beneficial to the grantee and imposes no burden will ordinarily be presumed even though the grantee had no knowledge of the existence of the deed until after the grantor's death. (Baker v. Hall, 214 Ill. 364.) If there was no intention of Grimes to make a delivery of the deed to the complainant, there is, of course, no question of acceptance by her, but the presumption of acceptance could not apply because a delivery would confer no benefit upon her. There is no room for a presumption that she accepted the benefits of a conveyance which conferred no benefit but which was to be used merely as a means for conveying title to another. The complainant had no knowledge of the existence of the deed to her, and merely executed the deed in compliance with the supposed wish of her father without knowing its purpose or the land described in it. The complainant had no title to the land when she executed the deed to Solon Eaton, and there were no words contained in it expressing an intention that it should extend to after-acquired title. It was sufficient to convey any legal or equitable right she then had, but under section 10 of chapter 30 of the Revised Statutes it did not operate to convey the title subsequently acquired through the will.
The bill alleged that the conveyance from the complainant to Eaton was obtained by fraud, and we agree with counsel for the appellants that fraud was not proved. The conveyance was made under the direction and at the request of Grimes to carry out his plan for changing his will, and the action of Solon Eaton was at his request for the purpose of executing that intention. His conduct was blameless, and his action was free from fraud, either in fact or in law. It was not essential, however, that there should have been either allegation or proof of fraud. The deed from the complainant to Eaton, although it conveyed nothing, was a cloud upon her title, and it was based on the deed made to her which was never delivered, so that she
had a right, in equity, to have the deeds apparently transferring title removed, and the action of the chancellor was right. The decree is affirmed.
The City of Chicago HEIGHTS, Appellee, vs. GEORGE S.
Angus et al. Appellants.
Opinion filed April 22, 1915. 1. SPECIAL ASSESSMENTS—preliminary proceedings required by Local Improvement act are jurisdictional. The provisions of section 7 of the Local Improvement act requiring a resolution of the board of local improvements containing the engineer's estimate of cost and requiring not less than ten days to elapse between the adoption of the resolution and the public hearing are mandatory and jurisdictional.
2. Same-statute must be followed irrespective of the question whether the property owner was injured. The provisions of the Local Improvement act with reference to special assessments must be strictly followed, irrespective of the question whether a failure to observe such provisions has resulted in any injury or inconvenience to the property owner.
3. SAME-an objection that ten days did not intervene between adoption of resolution and public hearing is valid. An objection that ten days did not elapse between the adoption of the resolution for an improvement and the public hearing is valid when made upon the application for confirmation of the assessment. (Village of Homewood v. Granniss, 265 I11. 135, distinguished.)
4. Same—when the variance between estimate and resolution is substantial. If there is a material difference between the work provided for in the resolution and that included in the engineer's estimate the variance is substantial, whether the estimate is for more or less work than is provided for in the resolution.
5. SAME-power of court to allow additional objections to be filed on the hearing. Under the Local Improvement act the court may, for good cause shown, allow new and additional objections to be filed at any time while the proceedings are pending and should hear evidence in support of the same.
6. SAME-ordinance and estimate for paving street should not ignore creek across street. An ordinance and estimate for paving a street should not provide for the paving of the entire roadway of the street without making any provision for crossing a thirtyfoot creek in the street, or excluding the creek, and bridge over the creek, from the improvement.
7. SAME-cost of tile drains to be laid under curbs should be itemized separately. The cost of four-inch tile drains to be laid under the curbs on both sides of the street to be paved should be itemized separately in the engineer's estimate of the cost of the improvement.
APPEAL from the City Court of Chicago Heights; the Hon. CHARLES H. Bowles, Judge, presiding.
LINDHOUT & LINDHOUT, and. W. T. HAPEMAN, for appellants.
EARL E. SMITE, Corporation Counsel, for appellee.
Mr. JUSTICE CARTER delivered the opinion of the court:
This was a proceeding in the city court of Chicago Heights for the improvement of a system of streets in that city by a special assessment against the property found to be benefited thereby, under the Local Improvement act of 1897. Legal objections were filed by appellants and after a hearing by the court were overruled. Appellants waived further controversy on the record, and this appeal followed.
The estimated cost of the improvement was $72,529.11. The paving was to be made of Portland cement concrete on cinder foundation. The board of local improvements of the city of Chicago Heights adopted a resolution on June 29, 1914, describing the improvement and the streets to be paved. Incorporated in this resolution was an estimate made by the engineer of said board which provided for the paving only of certain parts of some of the streets that it was provided in the resolution itself should be paved. At the public hearing held July 8, 1914, nine days after the adoption of the resolution, the board of local improvements adjourned the hearing until July 16, 1914. At the
adjourned meeting the proceedings were amended so as to include the expense of drainage in the improvement, and thereupon a second or final resolution was adopted adhering to the first resolution, except that it also provided for the construction of four-inch tile drains under the curb lines on either side of the street, and the estimate was revised to conform to the improvement as modified.
Counsel for appellants argue that the court erred in overruling the objection urged by them that the first resolution did not comply with the provisions of section 7 of the Local Improvement act, which provided that the board of local improvements in the first resolution should fix a day and hour for the public consideration of the improvement, "which shall not be less than ten days after the adoption of such resolution.” (Hurd's Stat. 1913, p. 414.) The preliminary proceedings required by the Local Improvement act are essential to the passage of a valid improvement ordinance. The estimate of the cost and all the preliminary requirements necessary to be taken before the passage of an improvement ordinance are jurisdictional. (Bass v. City of Chicago, 195 IH. 109; City of Chicago v. Nodeck, 202 id. 257.) The requirement of the statute as to the engineer's estimate of the cost of the improvement is mandatory. (Bickerdike v. City of Chicago, 203 Ill. 636.) The provisions of said section 7 requiring a resolution of the board of local improvements containing the engineer's estimate of cost, and also the provision concerning the lapse of time between the adoption of the resolution and the public hearing, are mandatory and jurisdictional. (Clarke v. City of Chicago, 185 Ill. 354.) The resolution of the board of local improvements fixing a day for the public hearing but failing to specify the hour and place does not comply with the statute, and it cannot be presumed that the public officials fixed an hour and place in the notices required by law to be made with reference to such hearing. Any attempt by such public officials to supply the omission