were filed in the circuit court of DuPage county, covering different portions of the land, in the name of Mary L. Owen, one in partition and the other to remove a cloud. They both alleged the title to said premises to be in Mary L. Owen and the bill in the partition suit was sworn to by her. When the bills were prepared, ready for signature, they were delivered by Rathje to Dr. Owen for examination, and he was familiar with their contents before they were filed. Shortly after the deeds were made the farm was taken possession of by Dr. and Mrs. Owen, the doctor being the active spirit in its management and improvement, although Mrs. Owen was frequently at the farm from the time of its purchase up to the time of her death. On the 30th of December, 1903, Charles S. Owen and Mary L. Owen, accompanied by their son, were in Chicago and attended the Iroquois theatre on the afternoon of that day, where Mrs. Owen and her son, William, lost their lives, and Dr. Owen died two days later from injuries he sustained while in the theatre.

It is conceded upon this record that William Owen died prior to his mother. In other words, the bill avers Mary L. Owen died leaving her husband and her brother and sister and nieces and nephews, the appellees, as her sole heirs-atlaw, and that proposition is not contested by the appellant; and it is agreed in the briefs filed by the respective parties that the only question presented upon this record for decision is, was the deed from Mary L. Owen to Charles S. Owen, bearing date November 16, 1900, delivered to Charles S. Owen during the lifetime of Mary L. Owen?-and that is the only question we shall consider on this appeal. If the deed was delivered, then Charles S. Owen died seized of the absolute title to the premises and the decree of the circuit court was erroneous; if, however, the deed was not delivered, then he died seized only of the undivided one-half of said farm which he inherited from his deceased wife and the decree of the circuit court is correct.

The question of delivery is a mixed question of law and fact, and it is held that the delivery of a deed may be made by acts alone, that is, by doing something and saying nothing; or by words alone,—that is, by saying something and doing nothing; or it may be delivered by both acts and words. It must, however, be delivered by something answering to the one or the other, or both, and with the intent thereby to give effect to the deed. (Rountree v. Smith, 152 Ill. 493.) In the case at bar the deed was handed to Charles S. Owen by Mr. Lewis, and after it had been signed and acknowledged by Mrs. Owen was placed by Owen in his private box, where it remained until after his death. If these were the only facts which appeared in evidence bearing upon the question of delivery, it might well be held that the deed had been delivered. It appears, however, that the deed was made, not with the intention that it should immediately take effect and pass the title to said farm to Charles S. Owen, but that it should only take effect in case Charles S. Owen survived his wife, and in the event that his wife should survive him it was never to take effect but was to be destroyed. A deed must take effect immediately upon its execution and delivery to the grantee or it will not take effect at all. (Wilson v. Wilson, 158 Ill. 567; Wilenou v. Handlon, 207 id. 104.) We think it clear that the parties to this deed intended it to operate as a will, and that the possession of the deed by Charles S. Owen did not have the effect to vest the title to said farm in him.

It is urged, however, that the deed was delivered into the hands of Charles S. Owen, and it is said such delivery had the effect to invest him with the title to the premises regardless of the intention of the parties, on the ground that a deed cannot be transferred from the possession of the grantor to the grantee without vesting title in the grantee. We do not so understand the law. While a deed cannot be delivered to the grantee in escrow, numerous cases have been decided by this court where deeds have been held not to have been de

livered so as to pass title although the possession of the deed passed from the grantor to the grantee. In Rountree v. Smith, supra, the deed was delivered by the grantor to the grantee and recorded with the knowledge and consent of the grantor, and yet it was held that it was not delivered to the grantee so as to vest her with the title to the premises described in the deed. (See, also, Bovee v. Hinde, 135 Ill. 137; Hayes v. Boylan, 141 id. 400; Oliver v. Oliver, 149 id. 542; Wilson v. Wilson, supra; Hollenbeck v. Hollenbeck, 185 Ill. 101.) In the Wilson case the deed was placed in the hands of one of the grantees with the understanding if the grantor did not call for it it was to be placed of record after his death. The court, on page 574, said: "The mere placing of the deed in the hands of one of the grantees did not, of itself, necessarily constitute a delivery. In such a case the inquiry is, what was the intention of the parties at the time?—and that intention, when ascertained, must govern." And in Oliver v. Oliver, supra, on page 547, it was said: "The fact that a grantee in a deed may, after the execution of the instrument, take it into his hands does not, of itself, establish a delivery." And in Hollenbeck v. Hollenbeck, supra, on page 103: "The mere placing of a deed. in the hands of the grantee does not conclusively establish a delivery thereof, within the legal meaning of that word. Delivery is a question of intent, and depends upon whether the parties at the time meant it to be a delivery to take effect at once."

We think the evidence clearly shows no attempt was made to deliver the deed to Charles S. Owen in escrow, but that the deed was handed to him that it might be safely kept in the tin box in the bank. A delivery in escrow requires that the deed be absolutely delivered, that is, it must pass beyond the dominion of the grantor. The delivery to a third party in escrow, in order that it may be sufficient to vest title in the grantee, must be such as to deprive the grantor of all control over the deed. (Shults v. Shults, 159 Ill.

654.) In Wilson v. Wilson, supra, on page 574, the court said: "It seems clear * there was no intention, at the time, to convey a present absolute title to the defendants, but the intention was that the deed should take effect at the grantor's death and vest the title in the defendants, provided he died without having recalled the deed. This was in no sense an attempt to deliver to the grantees in escrow, as contended by counsel for the defendants, but was merely a transfer of the possession of the deed to one of the grantees, the grantor at the time, however, reserving a future control over it. To constitute delivery of a deed it must clearly appear that it was the intention of the grantor that the deed should pass the title at the time and that he should lose all control over it. A deed for an interest in land must take effect upon its execution and delivery, or not at all.”

The late case of Russell v. Mitchell, 223 Ill. 438, in its facts is very much like the case at bar. In that case Fannie Russell and Charles R. Russell, husband and wife, executed a deed to their son-in-law, John M. Mitchell, to premises the title of which rested in Mrs. Russell, and Mitchell and wife immediately executed a deed for the same premises to Charles R. Russell, which deeds were placed in a bank among the private papers of Charles R. Russell, where they remained until Mrs. Russell's death. The deeds were not recorded until after Mrs. Russell's death, and Russell said the deeds were made with the understanding if he died first they were to be destroyed, but if his wife died first they were to be recorded, and it was held that the transaction was testamentary in its character, and that the deeds were not so delivered as to vest the title to the premises therein described in Charles R. Russell.

We have examined this record with care, and are of the opinion the circuit court properly found, and so decreed, that the deed from Mary L. Owen to Charles S. Owen was not delivered during the lifetime of Mary L. Owen. The decree of the circuit court will therefore be affirmed.

Decree affirmed.

SAMUEL EPPSTEIN et al.

ย.

ISAAC KUHN.

Opinion filed December 22, 1906-Rehearing denied Feb. 8, 1907.

1. LANDLORD AND TENANT-effect where tenant for years holds over without new contract. A tenant for a term of years under a lease who holds over without a new contract may be treated by the landlord as a trespasser or a tenant, and by accepting a month's rent he elects to treat him as a tenant from year to year on the terms of the original lease.

2. SPECIFIC PERFORMANCE-year to year tenancy is an encumbrance on the title to property. A year to year tenancy is an encumbrance, within the meaning of a contract for a conveyance of title free from all encumbrances; and if the existence of such tenancy was unknown to the proposed vendee he is entitled to refuse a deed, unaccompanied by possession, without forfeiting his rights under the contract, and may maintain a bill for specific performance and to require the vendor and his tenant to interplead and adjust their rights.

3. SAME when damages for depreciation should be deducted from purchase price. If a proposed vendor is unable to convey a title free from all encumbrances, in accordance with his contract, at the time specified for such conveyance, the proposed vendee, in an action for specific performance, is entitled to have deducted from the purchase price the amount the premises were depreciated in value by reason of the existence of the encumbrance, including loss by fire.

APPEAL from the Circuit Court of Champaign county; the Hon. SOLON PHILBRICK, Judge, presiding.

Appellant Samuel Eppstein was, and had been for several years prior to June 7, 1904, the owner of premises in the city of Champaign, Illinois, known as No. 41 Main street. The legal title was in his son, William D. Eppstein, but there is no dispute that the premises really belonged to his father. Isaac Kuhn, appellee, and his father, owned a building and premises but a few feet distant from Eppstein's, in which they were, and had been for years prior to June 7,