#### Henry L. Gunnell et al. v. Richard H. Cockerill et al.

1. Deed—no particular form, or ceremony necessary in delivering. No particular form or ceremony is necessary to constitute a delivery of a deed. It may be by acts without words, or by words without acts, or by both. Anything which clearlv manifests the intention of the grantor *" ° a and the person to whom it is delivered, that the deed shall presently become operative and effectual, that the grantor loses all control over it, and that, by it, the grantee is to become possessed of the estate, constitutes a sufficient delivery. The very essence of the delivery is the intention of the party.

2. It is not necessary that a deed should he actually delivered to the grantee; and where a deed of trust, executed to a trustee for the purpose of securing the creditors of the grantor, is delivered to a third party for and on behalf of the grantee, for the benefit of and with the intent to protect and secure the creditors therein named, that constitutes a sufficient delivery.

3. Notice to purchaser wider trust deed—irregularities in sale. A purchaser under a trust deed containing a power of sale, is chargeable with notice of defects and irregularities attending the sale, and their effect can not be evaded by him. He is bound to know whether proper notice was given by the trustee, of the sale, and whether the sale was made at a time and in the manner required by the power contained in the deed of trust.

4. Same—as to subsequent purchasers. But the rule is different as to remote and subsequent purchasers. If there is nothing upon the face of a deed from the trustee in a deed of trust to the purchaser, showing that the sale was made in violation of or contrary to the power contained in the deed of trust, a subsequent purchaser, who has no notice, in fact, of any irregularity in the sale bj' the trustee, will be protected as an innocent purchaser.

Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.

Messrs. Dickey & Caulfield, for the appellants.

Messrs. Hillis & Chkistian, for the appellees.

*80Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, exhibited in the Superior Court of Cook county by Henry L. Gunnell and others, heirs at law of Joshua C. Gunnell,.deceased, on the — day of March, 1870, against Richard H. Cockerill and others, to set aside a deed of trust executed by Joshua C. Gunnell to Cockerill, and also to cancel and set aside a sale of certain property, in the city of Chicago, made by Cockerill, under the trust deed, to one Lockhart R. Carswell, and subsequent conveyances made by Carswell to John D. Hoovers and M. W. Lord or their grantees.

The defendants put in answers to the bill, to which replication was filed, proofs were taken, and, on the hearing, a decree was rendered dismissing the bill, to reverse which the complainants have prosecuted this appeal.

Two grounds are relied upon to secure a reversal of the decree—

First—That the deed of trust made by Gunnell to Cockerill was not delivered.

Second—If the deed Was delivered, the property was not sold in the_ manner required by the terms of the trust deed.

The deed of trust bears date March 13, 1862. Gunnell and Cockerill were, at the time, residents of Fairfax county, Virginia, but, owing to the then disturbed condition of the country in which they resided, growing out of the war, they started to go further south. When they reached Fauquier county, they stopped a few days at the residence of a Mr. Hunter.

At this time, Gunnell was largely indebted. He owed not only debts of his own, but he was security for others, and, as he was desirous of securing his own creditors in preference to those to whom he was liable as security, the deed of trust was then prepared, executed and acknowledged.

After the deed had been acknowledged, the question arose in regard to what disposition should be made of it in order *81that it might not be destroyed. Gunnell, the grantor in the deed, proposed to send it to the recorder’s office for record. Mr. Moss, who was clerk and recorder of Fairfax county, advised against that plan, as they proposed removing the records further south, for safety. He advised Gunnell that it would be safer to leave the deed with Mrs. Moss than to place it in the office. Accordingly, the deed was placed in the possession of Mrs. Moss for safety. Prior to this time, Gunnell had frequently stated that he was involved, and that it was his intention to make a deed of trust in order to protect his own creditors. At the time the deed was executed, he was very anxious that it should be made, and was not willing to delay the preparation of the deed or its execution. It also appears that, after the deed had been executed, Gunnell frequently expressed himself gratified that he had made it.

These are some of the leading facts connected with the execution of the deed of trust, but it is urged that the evidence is not sufficient to establish the fact that the deed was delivered.

No particular form or ceremony is necessary to constitute a delivery of a deed. It may be by acts without words, or by words without acts, or by both. Anything which clearly manifests the intention of the grantor, and the person to whom it is delivered, that the deed shall presently become operative and effectual, that the grantor loses all control over it, and that, by it, the grantee is to become possessed of the estate, constitutes a sufficient delivery. The very essence of the delivery is, the intention of the party. Bryan v. Wash, 2 Gilman, 557.

It was not necessary that the deed should be actually delivered to the grantee. If it was delivered to Mrs. Moss, for and on behalf of Cockerill, for the benefit of and with the intent to protect and secure the creditors therein named, that would constitute a sufficient delivery. Gunnell, as appears from the evidence, was familiar with the steps necessary to be taken in order to make a valid deed of trust. The *82anxiety manifested until lie had accomplished his repeatedly expressed intention, his wish to preserve the deed by placing it upon record, and the expression of satisfaction, after it was executed, with what he had done, all show clearly his intention to make the instrument effectual by a valid delivery.

From a careful examination of all the evidence, we are satisfied it was the intention of Gunnell, in the execution of the deed, that it should take effect from the time it was placed in the possession of Mrs. Moss, and we entertain no doubt in regard to the sufficiency of the evidence to establish the fact that the deed was delivered.

The question in regard to the delivery of this deed was before the Supreme Court of Appeals of the State of Virginia, on substantially the same evidence as is contained in this record, and it was held the evidence was sufficient to establish a delivery of the deed. Hunt et al. v. Brent et al., Virginia Reports. That decision is sustained by the authorities, and meets our approval.

It is however urged, that even if the deed was delivered and became valid, the court erred in not setting aside the sale made by Cockerill to Carswell.

It appears, from the evidence, that the property conveyed by the deed of trust consisted, in part, of two acres of land in the city of Chicago. After the death of Gunnell, which occurred in 1864, Cockerill placed the deed of trust upon record in Cook county, and on the 8th day of October, 1867, he sold and conveyed the land in Chicago to Lockhart R. Carswell for $2000, which, at the time, was the full value of the land.

The deed of trust authorized the trustee to sell on demand of one-fourth of the creditors, and required notice to be given of the time, place and terms of sale.

The Chicago property was advertised for sale, but Cars-well purchased at private sale.

It also appears, from the proof, that on the 10th day of February, 1869, Carswell sold one-half of the Chicago prop*83ertv to John D. Hoovers, and the other half to M. W. Lord. Each of these parties had the title to the premises examined before they purchased, by competent and reliable attorneys, and they were advised the title was good.

On the hearing, the Superior Court decided that the trust deed was delivered, and was valid, but refused to determine the question in regard to the validity of the conveyance from the trustee to Carswell, or in regard to the validity of the title of the purchasers from Carswell, and entered a decree dismissing the bill without prejudice to appellants, in so far as they may have any cause of complaint on account of anything done under the deed of trust.

The decision of the court was based upon the ground, as appears from the decree, that under a bill alleging that the deed was void for want of delivery, the complainants could not inquire into the validity of the conveyances made under the trust deed by the trustee.

It is not necessary to inquire whether the reason given for the decision was correct or incorrect: it is only necessarv to determine whether the decree dismissing the bill was proper, under the evidence.

It will be observed that the bill did not pray for a decree against the trustee, or Carswell, or any of the purchasers, for the proceeds of the sale of the premises, or any portion thereof, but the relief prayed for in the bill was, that the deed of trust be declared void, and that the sale of the property to Carswell, and all conveyances growing out of such sale, be set aside and declared of no effect.

It is therefore apparent that no personal decree could have been rendered against Carswell for the profits he made in the purchase and sale of the premises, although he may not have been an innocent purchaser, as the allegations of the bill were not sufficient to authorize a decree of that character.

Appellants, however, complain that the court did not, after deciding that the trust deed had been delivered, proceed and *84pass upon the rights of the purchasers, Hoovers and Lord, who purchased of Carswell.

If, however, the evidence would justify a decree dismissing the bill, had the court passed upon that branch of the ease, then appellants are in no position to complain, as the decree which was rendered was more favorable to them than it would have been had the court proceeded and disposed of the other point, as they now claim it was the duty of the court to have done.

Had the bill been filed to set aside the sale made by the trustee, while the title to the premises remained in Carswell, the relief might have been granted.

A purchaser under a trust deed containing a power of sale, is chargeable with notice of defects and irregularities attending the sale, and their effect can not be evaded bv him.

Carswell was, therefore, bound to know whether proper notice was given by the trustee, of the sale, and whether the sale was made at a time and in the manner required by the power contained in the deed of trust, but as to remote and subsequent purchasers the rule is different. Hamilton v. Lubukee, 51 Ill. 415; Cassell v. Boss, 33 Ill. 244.

The fact is undisputed, that Hoovers and Lord, when they purchased, had no actual notice of any defects in the sale through which their grantor, Carswell, acquired title.

If, then, the deed from Cockerill, the trustee, to Carswell contained nothing upon its face to show that the sale was made contrary to the terms of the deed of trust, then there can be no pretense that Hoovers and Lord had ex*en constructive notice of any irregularities in the sale.

The deed, hoxvever, from the trustee to Carsxvell was not introduced in evidence, neither xvere the deeds from Carswell to Hoovers and Lord put in evidence. We can not, therefore, determine whether the purchasers under Carsxvell are entitled to be protected as innocent purchasers or not.

Had the deeds been put in evidence, so that the record would have shown the purchasers under Carswell were the *85owners of the premises, and innocent purchasers, we would have had no hesitation in affirming the decree, although the court did not pass upon that branch of the case.

When this case was first before us, our attention was not called to the fact that the deed from the trustee to Carswell, and the deeds from Carswell to the subsequent purchasers, were not in evidence; the question mainly relied upon and argued by the counsel for appellant, was in regard to the delivery of the deed.

We can not, therefore, as the deeds were not introduced in evidence, hold that the decree dismissing the bill was correct.

The decree, so far as it found the deed from Gunnell to Cockerill was delivered, will be affirmed ; in all other respects it will be reversed, and the cause will be remanded for another trial, consistent with this opinion.

The costs in this court will be equally divided between appellants and appellees.

Decree reversed, in part.