Robinson v. Robinson , 116 Ill. 250 ( 1886 )

Mr. Justice Craig

delivered the opinion of the Court:

It is not essential to the validity of a deed that the notary’s seal should be attached. A deed may be valid and binding on the parties who execute it, without any acknowledgment before an.officer. The purpose of the certificate of acknowledgment is to prove the execution of the deed, and where there is no certificate of acknowledgment, other proof may be resorted to to prove the execution of the instrument, and when thus proven, the deed is as operative and binding on the parties as it would be if properly acknowledged before an •officer. There is ample evidence in the record to prove that the grantors executed the deed, and the fact that the notary failed to affix his official seal to the certificate of acknowledgment, did not affect the validity of the instrument.

But it is urged that the deed was never delivered, and upon this ground the title to the land did not pass to John E. Robinson, the person named therein as grantee. There is no conflict in the evidence as to the fact that the deed was in. the actual possession of the grantee, and remained in his possession until a short time before his death. The defendant Robinson himself testifies that he procured the deed from John E. Robinson, and destroyed it. At what time or under what circumstances the deed ivent into the possession of the deceased is not clear from the evidence. But the fact that he had the deed, and was in the full possession of the land, improving and cultivating it as owner, is beyond question.

If the ease was to be determined entirely upon the evidence of the defendant Robinson, and his daughter, Sally Hargrave, ■who, he claimed, had the custody of the deed, there might be some doubt in regard "to the delivery of the instrument; but the decision of the case does not hinge upon the evidence of these two witnesses. There is much evidence in the record tending to prove that John E. Robinson purchased and paid for the land, and that the deed was properly in his possession, as grantee, at the time his father obtained the possession of and destroyed it. Bracket testified to a conversation with George W. Robinson a short time before the deed was executed, in which Robinson told him that the land was paid for and belonged to John; that he had neglected to make a deed. Under the advice of the witness, Robinson then sent one of his sons to Enfield, after Wilson, the -notary, to take the acknowledgment. Wilson testified that he took the acknowledgment of the deed, and Gowdy states that he saw the deed in the possession of John E. Robinson on the 10th day of April, 1SS2, and read it. Watson testified to a conversation with George W. Robinson, in which he said that John had paid $400 to redeem this land and another forty-acre tract from a mortgage, and the tract in question was to be deeded to John’. Crabtree testified that Robinson told him in September, 1879, that his son,-John, had $400 to pay on a piece of land.

There is other evidence that John E. -Robinson, about the time the deed was executed, had $400 or $420 in his possession to pay on land. Indeed, there is much evidence in the record that John E. Robinson purchased the land from his father. In the fall of 1879, after the deed was executed, John E. Robinson was married, and moved on the land, built a house at ’ a cost of $250, and made other improvements, lie occupied the land for two or three.years, until he died. These facts all indicate that he had purchased the land. It is true that George W. Robinson testified that he never delivered the deed, and did not intend to deliver -it; but this evidence is overcome by the other evidence, in the case, which we think is sufficient to establish the fact that the transaction was a purchase, and the deed delivered to John E. Robinson as a purchaser of the land. If the deed had never been delivered, the title to the land would not pass under the deed. Or if the grantee bad obtained the possession of it by fraud, without the knowledge or consent of the grantor, the title to the land would not pass. In order to pass the title to land, a deed must be executed and delivered to the grantee. A valid delivery is indispensable. But we regard the evidence in the record sufficient to establish a valid delivery.

It appears that after the deed was destroyed, George W. Eobinson conveyed the land to Gentry for $1200, payable in one, two and three years, and took his two notes, and a mortgage to secure the notes, and Gentry conveyed to Hargrave. It also appeared from the evidence on the trial of the cause, that Eobinson had transferred the note first due, to Mrs. Hinde, as collateral security, and the second note to one Miller, and retained the third note. Gentry and Hargrave were made parties to the bill, but when the bill was filed the complainant had no knowledge that Eobinson had disposed of either of the notes, and consequently Mrs. Hinde and Miller were not made parties to the bill.

It is contended that the decree is erroneous because these two holders of the notes were not made parties. Had the complainant known that Mrs. Hinde and Miller held the notes in question, they would have been proper parties, but they were not necessary parties. If they have any interest in the premises, that interest will not be affected by the decree.

The decree of the circuit court will be affirmed.

Decree affirmed.

This record was assigned to Justice Dickey to prepare an opinion, but he failed to prepare the -opinion, and the record was re-assigned at the November term, 1885.