APPEALS from the Circuit Court of Cook County; the Hon.
CORNELIUS J. HARRINGTON, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
These appeals from the circuit court of Cook County present the question whether certain deeds made by Victor Pechousek, Sr., to his children operated to sever joint tenancies existing between the grantor and his wife, Theresa Pechousek, in two separate parcels of real estate situated in Berwyn, Cook County. The circuit court of Cook County concluded that the joint tenancies had been severed and by its decrees directed the registrar of titles of Cook County (the properties having been registered under the Torrens Act) to issue certificates of title in Theresa Pechousek, widow of Victor Pechousek, Sr., and the six children of Victor Pechousek, Sr., accordingly. From those two decrees the widow, Theresa Pechousek, appeals. The cases, involving the same facts and questions of law, were consolidated for hearing in the trial court and have been consolidated for hearing on appeal.
Proofs were taken before an examiner of title, to whom the causes were referred by the trial court. It appears that one of the properties consisted of a dwelling located on Clinton Avenue in Berwyn. On and prior to June 1, 1950, the date of the deeds in question, title to this property was registered in Victor Pechousek, Sr., and appellant, his wife, as joint tenants. The other parcel of real estate consisted of a commercial property located on Oak Park Avenue, in Berwyn. Title to an undivided one-third interest in that property was registered in the same parties as joint tenants. Appellant was the third wife of Victor Pechousek, Sr. Appellees are his six children by a former marriage.
Early in February, 1950, Victor Pechousek, Sr., accompanied by a daughter, Tillie Klouda (one of the appellees) went to the law office of Geary & Stagman. Pechousek was 76 years of age, of sound mind and in reasonably good health. Pechousek and his daughter, and later Pechousek alone, consulted Judge Geary on that occasion. At the conclusion of the conference, the latter turned the parties over to an office associate. Some months later, on June 1, 1950, Pechousek and the appellee, Tillie Klouda, returned to the office of Geary & Stagman. Deeds had been prepared under the terms of which Pechousek, as grantor, conveyed and quitclaimed to his six children, as joint tenants, his interests in the Clinton Avenue property and the Oak Park Avenue property, respectively. Each conveyance contained the provision: "This deed not to be recorded and not take effect until my death."
The deeds were read to Pechousek by Judge Geary's associate, who handled the matter on that occasion. Pechousek then signed the deeds and they were acknowledged before a notary public. The attorney asked Pechousek if he wanted to deliver the deeds. Pechousek said that he did and that he understood Mrs. Klouda would receive them on behalf of herself and the other grantees. Thereupon he handed the deeds to Mrs. Klouda, who accepted them and placed them in an envelope. At the time he handed the deeds to his daughter, Pechousek instructed her not to record them until his death. Mrs. Klouda testified that her father said at that time, "Now I gave you everything."
Following that occasion, the deeds were kept by Mrs. Klouda in the safety-deposit box of herself and her husband. Pechousek did not have access to this box. There was no understanding between Mrs. Klouda and her father that she would return the deeds to him, if he requested. Pechousek never asked that they be returned. Mrs. Klouda testified that she showed the deeds to her brothers and sisters.
Pechousek retained possession and control of the properties until his death on January 15, 1952. Thereafter Mrs. Klouda brought the deeds to the law office of Geary & Stagman, and petitions, which culminated in the decrees previously mentioned, were filed to obtain the registration of those deeds.
Did the deeds sever the joint tenancies existing between Pechousek and his wife? It is fundamental that four coexisting unities are necessary and requisite to the creation and continuance of a joint tenancy; namely, unity of interest, unity of title, unity of time, and unity of possession. Any act of a joint tenant which destroys any of these unities operates as a severance of the joint tenancy and extinguishes the right of survivorship. (Van Antwerp v. Horan, 390 Ill. 449; Tindall v. Yeats, 392 Ill. 502.) Thus, a conveyance by one joint tenant of his entire interest destroys the unities of title and interest and works a severance. (Van Antwerp v. Horan.) In discussing the essential unity of interest, Blackstone observes: "One joint tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different; one cannot be tenant for life and the other for years; one cannot be tenant in fee, and the other in tail." (2 Blackstone's Commentaries, 181.) The same authority, in discussing the severance of a joint tenancy through destruction of the unity of interest, points out that if there be two joint tenants for life, and the inheritance is purchased by or descends upon either, a severance will result. (2 Blackstone's Commentaries, 185.) A conveyance by one joint tenant of a remainder interest, reserving a life estate, will sever the joint tenancy. (Clerk v. Clerk, 2 Vern. 323.) In each case the unity of interest is destroyed. The interest of one joint tenant no longer remains the same as that of the other.
In order for a deed of one joint tenant to effect a severance, the deed must be validly delivered. (Klajbor v. Klajbor, 406 Ill. 513.) Delivery is essential to render any deed operative and give it force as a conveyance. (Riegel v. Riegel, 243 Ill. 626.) In Heiligenstein v. Schlotterbeck, 300 Ill. 206, it is said: "If a deed lacks delivery, i.e., if the intended disposition is not to take effect in the lifetime of the grantor but is ambulatory, changeable until the death of the grantor, such disposition is not operative unless executed in writing in conformity with the Statute of Wills. (Oswald v. Caldwell, 225 Ill. 224.) With deeds that have been delivered it is different. A deed signed, sealed and delivered becomes at once binding and effective and from thenceforth it is irrevocable and unchangeable. If not delivered it is not effective and is not a deed. The delivery is as necessary to make it a deed as the signing and sealing. In order that a writing in form a deed may be held to be testamentary it must lack delivery. If the instrument in form a deed is delivered it at once becomes binding and effective and cannot thereafter be revoked or changed. Such an instrument is not testamentary in character. (Massey v. Huntington, 118 Ill. 80; Buck v. Garber, 261 id. 378; Young v. Payne, 283 id. 649; Moore v. Downing, 289 id. 612; Patterson v. McClenathan, 296 id. 475.) A deed that has been delivered is valid even though the estate is a future estate. Nowakowski v. Sobeziak, 270 Ill. 622; White v. Willard, 232 id. 464."
The rules with respect to delivery of deeds have been often stated. The matter turns largely upon the grantor's intention, to be gathered from surrounding circumstances. Each case must be decided on its own particular facts. (Hill v. Kreiger, 250 Ill. 408.) Parol evidence is admissible in such a case for the purpose of showing intention. (Potter v. Barringer, 236 Ill. 224.) It is only necessary that the intention of the grantor be clearly manifest that the deed shall become operative immediately and that he surrenders all control and dominion over it. (German-American Nat. Bank v. Martin, 277 Ill. 629; Deitz v. Deitz, 295 Ill. 552.) Where these requirements are met, it is no valid objection that a deed conveys a future interest in real estate. It is permissible for a grantor to convey the fee in his land beginning at a future time, and the time of the commencement of the estate may be fixed at the grantor's death or at any arbitrary date before or after his death, or it may be fixed by reference to such circumstances as the grantor may choose. Subject to the fee thus granted, the grantor will retain the ownership of the land and the right to possess and use it. (Hudson v. Hudson, 287 Ill. 286.) A delivery of a deed to one of several grantees for the benefit of all is equivalent to delivery to all. McClugage v. Taylor, 352 Ill. 550.
Appellant first contends that aside from any special considerations arising out of the fact that the titles were here registered under the Torrens Act, there was no valid delivery of the deeds by Victor Pechousek, Sr., in the latter's lifetime. Approached from this viewpoint, it certainly cannot be said that delivery is negatived by the recital in each deed that it was not to be recorded and not to take effect until the grantor's death. Deeds containing language of this tenor have repeatedly been upheld as present grants of a future interest. (Shackelton v. Sebree, 86 Ill. 616; Harshbarger v. Carroll, 163 Ill. 636; Latimer v. Latimer, 174 Ill. 418; Hathaway v. Cook, 258 Ill. 92; Pure Oil Co. v. Bayler, 388 Ill. 331; Nowakowski v. Sobeziak, 270 Ill. 622; Bowler v. Bowler, 176 Ill. 541; Oard v. Dolan, 320 Ill. 371; Bullard v. Suedmeier, 291 Ill. 400.) In Shackelton v. Sebree, the deed contained the clause: "This deed not to take effect until after my decease not to be recorded until after my decease." The contention that such a recital turned the instrument into an invalid testamentary disposition was denied. The deed was held validly delivered in the grantor's lifetime and effective as a conveyance of the fee after his death. In Harshbarger v. Carroll, a deed contained the recital that it was "only to take effect at the death of the grantor." It was held validly delivered and effective to convey title in fee to the grantee, subject to the reservation of a life estate in the grantor. In Hathaway v. Cook, the general rule was stated as follows: "Where a deed has been actually delivered to the grantee in the lifetime of the grantor, even though it contains a provision that it is not to take effect until the grantor's death, it will be sustained as a present grant of a future interest."
Neither can it be said that the evidence of surrounding circumstances, considered in its entirety, requires reversal of the trial court's findings (approving those of the examiner) that the deeds were properly delivered. Here, the grantor manually turned the deeds over to Mrs. Klouda at the time they were signed and acknowledged, and the deeds thereafter remained in her possession until the grantor's death. A duly executed deed found in the hands of the grantee raises a strong implication that it has been delivered and only clear and convincing evidence can overcome that presumption. (Hathaway v. Cook; Harshbarger v. Carroll.) The proofs indicate that the grantor understood, when he handed the deeds to Mrs. Klouda, that he had then surrendered complete dominion and control over them. There was no understanding that he would be entitled to a return of the deeds upon request. He never asked that they be returned. While Mrs. Klouda testified, at the hearing, that she would have given the deeds back to the grantor if he had asked for them, she was clearly not referring to any condition imposed by the grantor or to any understanding, express or implied, between the grantor and herself.
The fact that the grantor intended an irrevocable delivery of the deeds when he turned them over to his daughter on June 1, 1950, is emphasized by the testimony of Judge Geary. This witness testified that when Pechousek consulted him about how the joint tenancy could be destroyed, he advised Pechousek in substance that a will would be of no avail but that the severance could be accomplished by deeds which would operate as a present grant of a future estate; that when such deeds were delivered the interest would be immediately and irrevocably given. This advice of the attorney, followed by the execution of the deeds in the latter's office, indicates that the grantor must have intended to surrender all control and dominion over the deeds, with no right to reclaim them. (Moore v. Downing, 289 Ill. 612.) Appellant places reliance on the fact that the grantor retained possession and control and exercised acts of ...