#### John Doe, ex dem. Noblet Herbert, Thomas Janney and John D. Brown, Plaintiffs, v. John C. Herbert, (Chas. Louviere, Tenant,) Defendants.

AGREED CASE FROM RANDOLPH.

Prior possession is evidence of a fee, and although the lowest, unless rebutted by higher, it must prevail. (1)

A prior possession short of twenty years under a claim of right will prevail over a subsequent possession of the same time where no other evidence of title appears on either side.

A prior possession of less than twenty years without any other evidence is prima facie evidence sufficient to put the tenant on his defense.

Where the title to land is divested by operation of law, as in sales under execution, the possession of the defendant can not be considered such an adverse possession as to defeat the deed and render it inoperative.

A grantor in a deed who has no interest in the suit, and who has made no covenants, upon general principles, is a competent witness.

To render a deed for land valid and effectual, there must be both a delivery and acceptance of the deed. A deed not delivered and accepted, though recorded, passes no estate. (2)

The record presented the following state of facts. Ninian Edwards had peaceable possession of the premises in question *355in 1810, and continued it until the sale to Thomas E. Herbert by deed duly executed and recorded, bearing date the 7th day of September, 1818, which was produced and read in evidence. T. E. Herbert immediately upon the purchase, went into peaceable possession under his deed from Edwards, and remained in possession until his death which happened in 1821. The plaintiffs also produced in evidence a deed regularly executed and recorded from Charles Slade, administrator of said T. P. Herbert, bearing date the 23d day of July, 1823, conveying to the lessors of the plaintiff the premises in question, to whom he had sold the same under the authority of, and in compliance with an act of the general assembly of the state of Illinois, entitled “ An act authorizing the administrator of Thomas F. Herbert, deceased, to sell certain lands,” approved Dec. 19,1822. The plaintiff also proved that Charles Louviere was in possession of the premises at the time of the service of the declaration and notice, and here the plaintiffs rested their case. The defendant then moved the court for a nonsuit on the ground that the plaintiffs had not produced sufficient evidence of title to put the defendant on his defense, which motion the court overruled. The defendant then pro*356duced in evidence the record of a deed from T. F. Herbert, to John 0. Herbert, bearing date the 29th of September, 1818, for the premises in question, which deed was not attested by any subscribing witness, but was acknowleded before a justice of the peace for Randolph county, within which county the premises are situate, and recorded in the recorder’s office for said county, on the 15th day of January, 1819. This deed was objected to by the plaintiffs, on the ground that it was not executed in conformity with law, having no subscribing witness, and on the further ground that it had not been delivered by the grantor, and accepted by the grantee ; and to sustain this latter objection, the plaintiffs proved by Charles Slade, the administrator aforesaid, (whose testimony was objected to by the defendant on the ground that he was the grantor, as administrator, in the deed under which the plaintiff claimed, but who deposed that he had no interest in the event of the suit, and his deed to plaintiffs contained no covenants,) that he had found the deed from Thomas F. Herbert to John 0. Herbert, among the papers of the said Thomas, after his death. The original deed from T. F. Herbert to J. 0. Herbert was not produced, nor was it proved that it was ever in the possession of J. 0. Herbert, nor was it proved where the same was. The defendant then proved that T: F. Herbert was indebted to the said J. C. Herbert in the sum of $1,200, and that at the time of the execution .of said deed, he had incurred further responsibilities for the said T. F. Herbert as his security amounting to more than $3,000, that they were brothers, and that 0. Slade, the administrator of T. F. Herbert, permitted the said J. C. Herbert, by his agent, to take possession of the premises and receive the rents, who had continued the possession ever since.

Upon this state of facts, the circuit court gave judgment for the lessors of the plaintiff, which, by consent, was subject to the opinion of the supreme court.

(1)

In actions of ejectment, and for injuries to the inheritance, the possession of a tract of land by a party, claiming to be the owner in fee, is prima facie evidence of his ownership and seizin of the inheritance, and throws upon his adversary the burden of rebutting the presumption thus raised. Mason v. Park, 3 Scam., 532. Davis v. Easley et al., 13 Ill., 198.

Whoever is in the actual possession of land, claiming the fee, is presumed to own it, until the contrary appears; and may maintain an action for an invasion of his possession against any one but him who holds the legal title, or right of possession. Brooks v. Bruyn, 18 Ill., 539.

Possession of land is sufficient to entitle a party to maintain an action on the case against one who has so constructed his mill-dam as to overflow the plaintiff’s land. Stout v. McAdams, 2 Scam., 68.

Possession of a ferry franchise, for a term less than twenty years, is not evidence of a grant, or of a right to the same. Mills et al. v. County Com’rs St. Clair Co., 3 Scam., 56.

Possession and occupancy, when applied to land, are nearly synonymous terms, and may exist through a tenancy. Walters v. The People, 21 Ill., 178.

Where possession of land alone is relied on for any legal purpose, in the absence of paper title, it should be an actual occupancy of the premises in question. Webb v. Sturtevant, 1 Scam., 181. Ill. Mutual Fire Insurance Co. v. Marseilles Man. Co., 1 Gilm., 266.

Where two lots were claimed by a party, and improvements were made on one, but the lots adjoined; the court held the occupancy extended to both. Prettyman et al. v. Wilkey et al., 19 Ill., 235.

(2)

It is everywhere conceded that delivery is necessary to the validity of a deed. Hulick v. Scovil, 4 Gilm., 159, and cases there cited. But delivery may be made in various ways, and in some cases will be presumed, indeed in most cases, until the contrary is shown by evidence. In case of delivery to a stranger, without authority from the grantee to accept it, the acceptance by the grantee at the time of delivery will be presumed under the following circumstances : 1. That the deed be, upon its face, beneficial to the grantee; 2. That the grantor part entirely with all control over the deed; 3. That the grantor, (except in cases of *355an escrow,) accompany the delivery by a declaration, intention, or intimation, that the deed is delivered for and on behalf and to the use of the grantee; 4. That the grantee has eventually accepted the deed and claimed under it. Hulick v. Scovil, supra.

These further propositions are well established by the courts :

1. That although a deed may, under certain circumstances, be presumed to have been delivered by the grantor to the grantee and accepted by him, yet this presumption may be overcome by evidence which shows that there was no delivery or acceptance. Hulick v. Scovil, 4 Gilm., 159. Bryan v. Wash, 2 Gilm., 564. Ferguson v. Miles, 3 Gilm., 363. Wiggins v. Lusk, 12 Ill., 132. Hines v. Keighblinger, 14 Ill., 471.

2. That where a grantee claims under a deed, and has it in his possession, this raises a presumption of a delivery and acceptance. Id.

3. A deed can not become operative by a delivery after the death of the grantor. Wiggins v. Lusk, supra. Barnes v. Hatch, 3 N. Hamp., 304. Hale v. Hills, 8 Conn., 39. Stilwell v. Hubbard, 20 Wend., 44. Baldwin v. Maultsby, 5 Iredell, 505.

4. If a deed is made by A. to B. and deposited with C., to bo delivered to B. on the death.of A., the deed will take effect from the delivery to C. Belden v. Carter, 4 Day, 66. Ruggles v. Lawson, 13 Johns., 285. Foster v. Mansfield, 3 Metcalf, 412. Goodell v. Pierce, 2 Hill, 659. Tooley v. Dibble, id., 641.

In Freeman’s Digest, p. 1173, the case of Hines v. Keighblinger, 14 Ill., 471, is cited as conflicting with the case of Herbert v. Herbert; but on examination, I apprehend it will be found not to be the case. That the possession by the grantee of a recorded deed is prima facie evidence of a delivery, is undisputed, and is the point decided in the case of Hines v. Keighblinger. But when the possession of the deed is retained by the grantor, without proof of delivery, it is quite as well settled that the deed is inoperative, and the fact that it has been recorded is not presumptive evidence of delivery. In Wiggins v. Lusk, 12 Ill., 132, the deed had. been recorded, but was found, at the death of the grantor, among his papers. It was held by the court that it was insufficient to convey the title; and the case of Herbert v. Herbert, was cited and approved.

Opinion of the Court by

Justice Smith.

Under the agreed case, upon which this cause has been presented to this court, four questions are to be considered:

1. Was the motion in the court below for a nonsuit, properly overruled ?

2. Was the execution of the deed of Slade, as administrator of Herbert, valid; and did the title to the lands in question pass thereby ?

3. Was the grantor, Slade, a competent witness on trial?

4. Was there a due execution and delivery of the deed by Thomas F. Herbert to John C. Herbert?

*357The action of ejectment is considered in reality as an action of trespass, adding thereto an execution by which the prevailing party obtains the possession of the thing itself. The plaintiff must prove property in himself, or a right of possession— he may try the title or not, and if he does not desire to adduce his title, he may try nothing but the right of possession. Prior possession is evidence of a fee, and, although the lowest, unless rebutted by higher, it must clearly prevail. It is equally well settled, that the lessor of the plaintiff must recover on the strength of his own title. Let these principles be applied to the case before us, and inquire upon what evidence the court below overruled the motion for a nonsuit. It appears from the case, that it was proven that N. Edwards, through whom the title in question is asserted, had peaceable possession of the premises as early as 1810, and continued it, without any chasm, until the sale to Thomas F. Herbert, on the 7th of September, 1818; that Herbert, immediately upon the purchase, went into peaceable possession, and died in possession in 1821. A deed regularly executed by Charles Slade, the administrator of Thomas F. Herbert, of the date of the 23d May, 1823, conveying to the lessors of the plaintiff the land in question, which had been duly recorded, was produced, and to whom he had sold the same under the authority of and in compliance with a law of this state, approved 19th December, 1822. The plaintiff also proved that Charles Louviere, the tenant, was in possession at the time of the service of the declaration, and here rested his case.

The supreme court of the state of New York have said, that title may be inferred from, ten yea/rs1 possession, sufficient to put the defendant on his defense. Smith ex dem. Teller v. Burtis and Woodward, 9 Johns. Rep., 197; and that a prior possession, short of twenty years, .under a claim of right, will prevail over a subsequent possession of less than twenty years, when no other evidence of title appears on either side. There are several decisions of that court which sustain this doctrine. Smith v. Lorillard, 10 Johns. Rep., 355. Jackson v. Myers, 3 do., 388. Jackson v. Harder, 4 do., 202.

The proof here adduced was prima facie evidence both of title and of right of possession, and was sufficient to put the defendant on his defense. It was not necessary that the plaintiff should have shown a possession of twenty years, or a paper title. His possession as proved, was presumptive evidence of a fee, and was conclusive on the defendant, until he showed a better title. Upon this state of the case, the mere naked possession of the defendant could not prevail against it. There can, then, be no doubt, that the *358motion, for a nonsuit was properly overruled. The next point to be considered, is the validity of the deed of the administrator, executed by virtue of a law of this state, and the effect thereof.

T. F. Herbert having died in 1821, between that time and the making of the deed by the administrator in 1823, by consent of the administrator, John C. Herbert, by his agent, took possession of the premises in question, and continued up to the present time. It is then contended, that the administrator being out of the possession of the lands, at the time of making the conveyance, that it is therefore void. Hpon the death of Herbert, the estate in the premises passed to his heirs, and the legislature having by a law authorized the sale of the premises by the administrator, we think it not important to inquire whether the administrator was in or out of the actual possession of the land, at the time of making the conveyance by him. It may be doubted whether the possession of Herbert was such an adverse possession as would have rendered' a conveyance by the heirs void; but the law of the' legislature must be considered as a paramount authority, and it being admitted that the conveyance has been made agreeably to the provisions of that law, the estate of which Herbert died seized, passed by that deed, and it was well exeexited, and not void because of the possession of the agent of John C. Herbert. Where the title is divested by the operation of law, as in sales under execution, the possession can not be considered such an adverse possession as to defeat the deed and render it inoperative. Jackson v. Bush, 10 Johns. Rep., 223. The inquiry as to the competency of Slade, the administrator and grantor of the deed to the lessor of the plaintiff, will be now considered.

It is apparent that Slade had no interest in the decision of the cause; he had entered into no covenants upon which he could be liable; upon general principles, then, he was a competent witness, and the rule that all persons not affected by crime or interest are competent witnesses, must prevail. This is not a question of the admissibility of the maker of an instrument to impeach it, or destroy it for want of a consideration, or for fraud. Though even in such a case, the grantors in a deed have been admitted in an action of ejectment, in the supreme court of Massachusetts—that court deciding that the exception made, applies alone to negotiable instruments, which, upon principles of public policy and morality, ought not to be suffered to be impeached. Loper v. Haynes, 11 Mass. Rep., 498.*

*359In the present instance, Slade was not offered to prove any fact in connection with the execution of his deed as administrator, but collateral facts affecting the deed from Thomas F. Herbert to John C. Herbert. His admissibility, then, depended entirely upon his interest in the event of the suit, and standing indifferent in that respect, he was properly admitted to testify.

The last and remaining question, and most important one in the case, is, whether there was a delivery of the deed from T. F. Herbert to John C. Herbert. The objection to it is, that it was never delivered by the grantor to the grantee, nor to any other person for his use, nor was there any acceptance by the grantee. The facts disclosed in relation to this deed are, that it was found among the papers of Thomas F. Herbert, after his death, by Slade, his administrator; that the deed had never been in possession of the grantee, the administrator having, after its discovery, delivered it to a third person, and that the administrator did not know where it was. The original deed was not produced in evidence, nor its absence accounted for; but the records of the county, which showed that the deed had no subscribing witness, was acknowledged before a justice of the peace, bore date on the 29th of September, 1818, and was recorded on the 15th of January, 1819. The defendant proved that Thomas F. Herbert was, in 1812, indebted unto the grantee, John C. Herbert, in the sum of $1,200, and that he had been compelled to pay as security for Thomas F. Herbert, more than $3,000 since that time.

From this state of facts it is to be determined whether there was a delivery and acceptance of the deed to John G. Herbert.

It is most manifest that there could have been no delivery of the deed to the grantee, so as to pass the estate. The act of recording a deed can not amount to a delivery, when there does not appear an assent or knowledge by the grantee of the act. In this case, there is not a scintilla of evidence calculated to lead the mind to the belief that the grantee ever knew of the existence of the deed until after the death of the grantor. There could then have been no acceptance by the grantee, because the possession of the deed, if such had been the fact, derived after the death of the grantor, could not amount to one, there having been no delivery during the life of the grantor. That it is essential to the validity of a well executed deed, that there should be a delivery, will not be controverted. This delivery is said to be “ either actual, by doing something and saying nothing, or *360else verbal, by saying something and doing nothing, or it may be both; but by one or both of these, it must be made, for otherwise, though it be never so well sealed and written, yet is the deed of no force.

Breese, for plaintiffs.

Kane and Baker for defendants.

“ It may be delivered to the party himself to whom it is made, or to any other person by sufficient authority from him, or it may be delivered to a stranger for, and in behalf, and to the use of him for whom it is made without authority, but if it be delivered to a stranger without any such declaration, unless it be delivered as an escrow, it seems that it is not a sufficient delivery.” Jackson v. Phipps, 12 Johns. Rep., 419. 1 Shep. Touch., 57, 58. 2 Black. Com., 307. Viner’s Abr., 27, § 52.

It is also held to be essential to the legal operation of the deed that the grantee assents to receive, and that there can be no delivery without an acceptance. Indeed, a delivery of a deed, which is essential to its existence and operation, necessarily imports that there should be a recipient. Now, in this case, it would be idle to contend that there was a delivery and reception, when the grantor died before the grantee knew of the existence of the deed ? he could not then receive that of the existence of which he had no knowledge, nor could there have been a delivery to him without such an acceptance. There had been no act on the part of the grantor before his death, tantamount to a delivery, much less an actual one. The act of recording does not amount to it, because there appears a total absence of knowledge, on the part of the grantee, of such recording, or even of the existence of the deed until after the death of the grantor, and it does not appear that he had ever received the deed. The case of Jackson v. Phipps, 12 Johns. Rep., 419, before referred to, and Maynard v. Maynard and others, 10th Mass. Rep., 457, are directly in point, and sustain the principles here laid down. Without then inquiring whether the deed was fraudulent, it is sufficient to ascertain that the deed was never well executed by delivery, and that no estate passed théreby. The judgment is therefore affirmed with costs, (a)

Judgment affirmed.

*

Vide Duncan v. Morrison and Duncan, ante, p. 151, and the cases there referred to in note.

(a)

Delivery is essential to the validity of a deed. 2 Stark, on Ev., 476, 477. Co. Litt., 36. (a) 2 Bl. Com., 306, 307.

The delivery of every deed must be proved, as well as the execution of it, being an essential requisite to its validity. Jackson v. Dunlap, 1 Johns. Cases, 114. 2 Day’s Rep., 280. 3 Dane’s Dig., 356, § 21.

A formal delivery is not essential if there be acts evincing an intention to de» *361liver. Goodrich v. Walker, 1 John’s Cases, 250. Verplanck v. Story et uxor, 12 Johns. Rep., 536.

A delivery is essential to the validity of a deed, and there can be no delivery without an acceptance by the grantee. Where A., residing in this state, agreed with B., in Massachusetts, to give him a deed of his farm as security for a debt, and A., on his return home, in 1808, executed and acknowledged a deed to B., and left it in the clerk’s office on the same day to he recorded; neither the grantor nor any person in his behalf being present to receive the deed, and the grantee died in 1809, and in 1810 A. sent the deed to the son and heir of the grantee: it was held there was no delivery of the deed. Jackson v. Phipps, 12 Johns. Rep., 418.

A. signs and seals a deed conveying land to his son, and leaves it with the scrivener with directions to get it recorded, which was done, and the deed at the grantor’s request, still retained in the scrivener’s hands until the death of the son, when the father reclaimed and canceled it, the son having known nothing of the transaction. It was holden that the father was still entitled to the land, as against the heirs of his son, the conveyance having never been perfected by a delivery of the deed. Maynard v. Maynard and others, 10 Mass. Rep., 456.

If one convey lands to pay his debts, yet keeps the conveyance, this is fraudulent. 1 Dane’s Dig., Ch. 32, Art. 13, § 6.

The grantor in a deed not being interested in the event of the suit, is a competent witness to show that the deed was fraudulent. Loper v. Haynes, 11 Mass. Rep., 498. 3 Dane’s Dig., Ch. 86, Art. 3, § 17 to 22.