MacVeagh v.Chase & Sanborn , 67 Ill. App. 160 ( 1896 )

Mr. Justice Waterman

delivered the opinion of the Court.

The assignee appointed under our statute concerning general voluntary assignments by insolvents for the benefit of creditors, has a reasonable time within which to gain possession of the assigned property, and is not required to run a race with other • claimants, in order that by first obtaining possession his title may be made perfect. Lowe v. Matson, 140 Ill. 108; Mann v. Reed, 49 Ill. App. 406.

The important question in "this case is, therefore, when did the assignment take effect ?

Deeds take effect so as to pass title only from delivery and acceptance. To an indenture there are always at least two parties.

Where a deed is probably beneficial to the grantee, it may reasonably be presumed that he will accept the same; and where a deed has been properly acknowledged and recorded, a delivery will be presumed, but this presumption, like all presumptions which exist only for convenience, will yield to the facts which may be established. Washburn on Real Property, Vol. 3, 309, Fifth Ed.

It is said that a deed when accepted relates back to the time of its execution and recording. This, as between the grantor and grantee, may be so, but how as to the rights of third parties ?

As an acceptance of-a deed is as essential to the passing of title as is a delivery, it is difficult to see how a lien created prior to the acceptance, that is, prior to the passing of the title, can be divested by such acceptance. As to which, see Washburn on Real Property, Vol. 3, p. 310; Moore v. Flynn, 135 Ill. 74; Hulich v. Scovill, 4 Gilm. 159; Kingsbury v. Burnside, 58 Ill. 310; Union Mutual Ins. Co. v. Campbell, 96 Id. 267.

We do not regard the statement by the vice-president of the Title and Trust Company, that his company would act as assignee, as constituting an acceptance of a deed not then in existence. It is clear that the Trust Company was not bound by such promise, and might the next day have refused to accept the deed.

Before the assignee had in any manner accepted the assignment, or made itself a party thereto, appellants’ attachment became a lien upon the property. Subject to such lien, the title was, by the assignment and the acceptance thereof by the Trust Company, transferred to the assignee.

The judgment of the County Court is reversed and the cause remanded, with directions to allow appellants a prior lien if they shall maintain their writ of attachment.