Walton v. Burton , 107 Ill. 54 ( 1883 )

Mr. Justice Dickey

delivered the opinion of the Court:

The only ground urged for the reversal of the judgment of the Appellate Court in this case, is the alleged want of delivery of the mortgage by Elias Burton and wife to appellees, dated September 17, 1872, and filed for record the next day in the recorder’s office in Coles county, in which the real estate in question lies.

The proofs show that Elias Burton, of Illinois, being indebted to his brother Thomas, then resident in Ohio, the latter requested the former to secure the indebtedness by a mortgage upoh his real estate, and he promised to do so.After the creditor brother had gone to Ohio, the debtor and his wife signed, sealed and acknowledged the mortgage in question, and the debtor gave the same to the recorder, to be recorded, and soon after notified the mortgagee by letter that he had executed the mortgage. The mortgagee answered, requesting his brother, the mortgagor, to retain the mortgage for him, as he soon expected to come to Illinois. It turned out that he did not come so soon as was expected, and the mortgagor, having received the mortgage from the recorder, laid it away, to await the arrival of the mortgagee. By some mishap the mortgage was lost, and never came into the manual possession of the mortgagee. The proofs do not show at what exact date the mortgage was taken from the recorder’s office by the mortgagor—whether before or after the letter of the mortgagee asking his brother to keep the mortgage until his coming. The mortgagor testifies: “When I signed the mortgage, it seems to me I took it to the recorder’s office. ” The record shows it was filed the day next after its date. This witness proceeds: “My best recollection is, that some time after that I called at the recorder’s office and got it. * * * My brother Thomas requested me to make the mortgage. * * *' He knew it was made. I wrote him. ” He further testified that he retained the mortgage under a statement in a letter from his brother “that he would be out here in a short time, and for me to retain it and keep it. ” The mortgagee, on this subject, testifies: “It was made about the 17th of September, 1872, and recorded shortly after. * * * He gave me the mortgage because I demanded it. * * * I told Elias he must give me a mortgage on his land, to secure me. He said he would do so, and afterwards informed.me he had. * * * When I wrote' him for the mortgage, some years afterward, he informed me that it had got mislaid, and he could not find it. * * *' When he told íne he and his wife had made me a mortgage, and had it recorded, I asked him to keep it for me until I got there. ”

It is plain, from the mode of examining the witnesses, that at the hearing this question of delivery was not the main point in controversy. The answer, in general terms, denies the execution of the mortgage, but does not make a distinct point of the supposed want of delivery, and places the specific defence on other grounds, not now relied upon.

We think the decree was properly affirmed by the Appellate Court. Appellant insists that the proof fails to show that the mortgage was accepted while it was in the hands of the recorder. Assuming this to he material, the transcript from the record of the mortgage was prima facie, evidence of its delivery. The burden of showing that the acceptance came after the recorder had parted with the deed would seem to rest upon appellant. Be this as it may, the mortgage having been made, and acknowledged, and recorded, it needed only the assent of the mortgagee to make the delivery good. It had been delivered to the recorder, for the mortgagee, and even if withdrawn, after record, by the mortgagor, such withdrawal was plainly an act done for the mortgagee, and when his assent was made known, the manual possession of the mortgagor became at once the possession of the mortgagee.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.