Byars v. Spencer

Citations

• 101 Ill. 429
• 1882 Ill. LEXIS 104

Syllabus

<p>1. Delivery or deed—essential to its validity. A delivery is essential to render a deed operative, and it does not take effect until it is delivered. Without delivery it is void.</p> <p>2. Same—what amounts to a delivery—to whom, it may he made. The delivery of a deed may be to the grantee or to his agents, and no particular form or ceremony is necessary to constitute a sufficient delivery. It may be by acts, or words, or both; 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, and that the grantor shall lose all control over it.</p> <p>3. Where a deed is executed and delivered to a stranger, to be delivered to the grantee, without conditions, it will be a sufficient delivery to pass the title; but the execution of a deed, and having it recorded, without'the knowledge of the grantee, is not a delivery.</p> <p>4. When the facts show that the grantor did not intend to lose control over the deed, and he still continues to have power over the title without the consent of the grantee, there is not such a delivery as the law requires to render it a deed, and it can not pass title.</p> <p>5. So, where a father made and acknowledge! a dee! to his two minor children, but retained it until his death, and declined to have it recorded, on the express ground that he would thereby place the title beyond his power or control, and expressed ah intention, after he had made and acknowledged the deed, to sell the land if he could get a certain price, and in pursuance of that intention did offer to sell the land, it was held, that the deed was inoperative for want of a delivery.</p> <p>6. Judicial sale—party can not impeach, and still retain the proceeds. A party can not impeach a sale of his interest in land, under a proceeding by his co-tenants, when he has received and retains his share of the proceeds, on any ground, either for want of jurisdiction in the court ordering