(December 2018) The Circuit Court of Cook County recently agreed that our client is entitled to a trial to determine that he is the rightful owner of a home. The home was deeded to our client by his long time friend, who had died of cancer. Although the friend had not physically handed the deed to our client, the Court agreed that our client was entitled to a trial to prove that his friend intended to deed the house to our client.
Background Facts: Our client and Sam were friends for several decades and lived together in a house in Chicago. They did practically everything together; cooking, cleaning, laundry, doctors’ visits and vacations. When Sam was diagnosed with terminal cancer, our client took care of Sam and his everyday needs. In a gesture of deep gratitude, Sam executed a deed making our client a co-owner of the house they lived in. Unfortunately — and you hear this all the time — Sam did not have an estate plan, such as a basic will. So — not surprisingly — when Sam passed away, his nephew from another State filed a citation to recover assets in an effort to take the house back from our client.
The Law: For a deed to pass title from the grantor to the grantee, there must be “delivery” of the deed by the grantor. In re Estate of Shedrick, 122 Ill. App. 3d 861, 864 (1st Dist. 1984). Whether a deed has been “delivered” is a question of the grantor’s intent only, and a manual delivery is no longer required by Illinois law. Dunn v. Heasley, 375 Ill. 43, 48 (1940); Creighton v. Elgin, 395 Ill. 87, 96 (1946). Illinois courts do not attach as much importance to the mere manual possession of the deed as they do to the intention of the grantor, as gathered from the whole evidence, in regard to the vesting of title. Vaughn v. Vaughn, 272 Ill. 11, 24 (1916). If the intention of the grantor to pass title to the grantee is made out by the proofs, Illinois courts have sustained such transfers, even in cases where the manual possession of the deed remained with the grantor. Id.
In most cases, delivery of a deed is to be inferred from the facts and circumstances which by their very nature are equivocal and depend upon the subjective state of mind of the grantor. In re Estate of Key, 22 Ill. App. 3d 265, 271 (5th Dist. 1974). Whether the requisite intent to make delivery existed, and whether the grantor executed his intention to pass title by a sufficient delivery, are both questions of fact and generally for the jury to decide at a trial. Id. Therefore, in such cases, delivery becomes a question of fact and cannot be determined as a matter of law without a trial (i.e., such as by a motion for summary judgment). Id.
In our client’s case, we successfully argued to the court that whether the decedent actually intended to deliver the deed to our client to pass ownership of the home to our client was a question for the jury to decide at trial and could not be determined in a pre-trial motion for summary judgment.[1] In re Estate of Key, 22 Ill. App. 3d 265, 271 (5th Dist. 1974).
Under Illinois law, a grantor’s acknowledgment of delivery is strong evidence of delivery, especially where the certificate of acknowledgment in the deed recites in express terms that the grantor delivered the instrument. Dunn v. Heasley, 375 Ill. 43, 48 (1940). As in Dunn, the Deed in our client’s case contained a certificate of acknowledgement reciting in express terms that the grantor (the friend who died of cancer) delivered the deed to our client The second page of the deed even contained a certification stating that the decedent “acknowledged that he signed, sealed and delivered the instrument [Deed].” We argued that by itself, this certificate was sufficient reason to deny the motion for summary judgment and proceed to trial.
Delivery to one joint tenant is sufficient as delivery to all. We also argued to the Court that delivery of a deed to one of several grantees is equivalent to delivery to all. McClugage v. Taylor, 352 Ill. 550, 559 (1933); Creighton v. Elgin, 395 Ill. 87, 96 (1946); Klouda v. Pechousek, 414 Ill. 75, 81 (1953). In our case, the deed named two grantees – the decedent and our client – as joint tenants. Ex. B-1. The decedent signed the deed expressly declaring that it was delivered. He also had the deed notarized and kept the deed in the house where he and our client lived. Accordingly, we argued that this evidence showed that the deed was delivered to at least one of the grantees (the decedent), which is, as a matter of law, equivalent to delivery to all the grantees, including our client.
The grantor’s words and acts show that the Deed was delivered. Illinois law also holds that whether a deed has been delivered is a question of the grantor’s intent only, and a manual delivery is no longer necessary. Dunn v. Heasley, 375 Ill. 43, 48 (1940). A formal delivery of the deed is not required. Baker v. Hall, 214 Ill. 364, 369-70 (1905). Instead, delivery may be by acts without words, or by words without acts, or by both. Id.
In many ways, this case is very similar to another case where the Illinois Supreme Court found a deed had been delivered even though the grantee did not manually receive the deed until after the grantors had passed away. In Baker v. Hall, 214 Ill. 364 (1905), a mother and father executed a deed conveying land to their daughter. The deed stated that the mother and father reserved the right “to hold full possession until the deaths of each of the grantors, when the grantee is to have full possession in her own right.” Baker v. Hall, 214 Ill. 364, 367 (1905). The deed also stated that it was in consideration of one dollar to them in hand paid and “also in consideration of faithful services rendered” by the daughter in caring for her parents. Id. After the deed was signed, it was notarized. The notary handed the deed back to the father who kept the deed in their home where the daughter also lived. Id. at 370-72. The mother died several months later. There was no evidence that the deed was physically delivered to the daughter, or that the daughter even knew of the existence of the deed before her mother died. Id. at 369. Several months after the mother died, the deed was filed with the county recorder’s office. A suit was then filed seeking to void the deed to the daughter on the grounds that the deed was not delivered to her while her mother was still alive.
The Supreme Court in Baker agreed that the deed to the daughter was a valid conveyance. Baker, 214 Ill. at 371-72. The court reasoned that although the deed was not manually delivered to the daughter, the grantor intended to retain possession of the property during her lifetime, and therefore, her retention of the deed in her home during her lifetime did not undermine the presumption of a valid conveyance. Id. Furthermore, the grantor had the deed notarized, and it was held by one of the grantors until the mother died in the house where the daughter also lived with the grantors. Id. at 370-72.
The deed is valid even if the grantor retained the deed. It is not essential to a valid delivery that there should be a manual transfer of the deed from the grantor to the grantee. Vaughn v. Vaughn, 272 Ill. 11, 23 (1916); Baker v. Hall, 214 Ill. 364, 368 (1905); Dunn v. Heasley, 375 Ill. 43, 48 (1940). Even if the grantor retains the deed, the weight of authority is decidedly in favor of its validity, unless there are other circumstances, besides the mere fact of his retaining it, to show that it was not intended to be absolute. Id. The grantor’s intention to vest title in the grantee is regarded as of more importance than the mere manual possession of the deed. Id.
In Vaughn, the father of several adult children executed a deed conveying a farm to one of his sons. 272 Ill. at 23. The father had the deed notarized, but he never recorded the deed and retained possession of it until his death without ever physically delivering it to the son. Id. at 27. After his death, the father’s other children filed a claim against the grantee alleging that the deed was invalid because it was never delivered to the grantee. The Supreme Court affirmed the finding that the deed was a valid conveyance and that the grantee was the owner. The Supreme Court ruled that although the father retained possession of the deed before he died, there was no evidence but that the father intended to give the full and complete ownership and title to the farm to the son. Id.
Moreover, Sam retained an interest in the House because the deed was to himself and Frank as joint tenants. Ex. B-1; 765 ILCS 1005/1(b) (a joint tenancy is an estate with right of survivorship). Where a grantor reserves an interest in the property and its possession and control, the retention of the deed is not inconsistent with the idea that delivery was intended and that the deed is operative. Hill v. Kreiger, 250 Ill. 408, 414-15 (1911); Baker v. Hall, 214 Ill. 364, 371 (1905); Childress v. Childress, 298 Ill. 185, 191 (1921); Buck v. Garber, 261 Ill. 378, 382 (1913) (the reservation of a life estate in a deed to the grantors creates a presumption that it was intended the deed should take effect immediately as a conveyance to the grantee, for otherwise there would be no reason for such reservation).
The Court agreed with our law firm that the decedent’s retention of the deed in the house where he lived (with our client) is not inconsistent with the idea that the decedent intended to “deliver” the Deed to our client, and that a trial was necessary.
Where the deed is beneficial to the grantee, it is presumed that he accepted delivery of it. We also pointed to Illinois law which holds that if a deed of voluntary conveyance is beneficial to the grantee, it will be presumed that he accepted delivery of the deed, even though he had no knowledge of the existence of the deed until after the death of the grantor. Baker v. Hall, 214 Ill. 364, 367-69 (1905); Dunn v. Heasley, 375 Ill. 43, 48 (1940); Mclugage v. Taylor, 352 Ill. 550, 558 (1933). In this case, our client did have knowledge of the deed before his friend died. But, even if he did not, the law holds that it must be presumed that our client accepted the deed as a matter of law because the deed was a voluntary conveyance for our client’s benefit and also because our client promptly had the deed recorded after his friend’s death. See Vaughn v. Vaughn, 272 Ill. 11, 23 (1916) (deed was a valid conveyance even though grantor retained possession of the deed and it was not recorded until after the grantor’s death).
In cases like this, the law presumes there was delivery of the deed. Baker v. Hall, 214 Ill. 364, 367 (1905); Mclugage v. Taylor, 352 Ill. 550, 558 (1933); Waters v. Lawler, 297 Ill. 63, 70 (1921). At trial, the burden of proof is on the grantor, or those claiming through him (i.e., the Petitioner nephew), to show by clear and convincing evidence that the grantor (the friend who passed away) did not intend to convey title to our client. Baker, 214 Ill. at 367-69 & 371; Waters, 297 Ill. at 70; Vaughn v. Vaughn, 272 Ill. 11, 22-23 (1916). The presumption of the law is in favor of delivery, especially where the parties have a great degree of confidence in each other. Baker v. Hall, 214 Ill. 364, 367 (1905). Furthermore, the presumption of the law is in favor of delivery, especially where the transfer is voluntary, instead of part of a sale. Baker v. Hall, 214 Ill. 364, 367-68 (1905); Mclugage v. Taylor, 352 Ill. 550, 558 (1933); Walters v. Lawler, 297 Ill. 63, 70 (1921); Vaughn v. Vaughn, 272 Ill. 11, 22 and 26 (1916).