Opinion of the Court. Much testimony was taken, and the court excepted from the decree of partition the above described lands, holding the same were the exclusive property of William H. Douthit in virtue of his father's deed. The point made here by plaintiffs in error, and it is the only one, was there a delivery of the deed from John Douthit and wife to William H., under which he claims title? The deed was executed and acknowledged November 25, 1868, and filed for record on the 9th of February, 1870, about sixteen months after the death of John Douthit, he dying about the close of the year 1868. William, at the date of the deed, was about seventeen years of age, and the only child of his parents living with them. There is no proof of an actual delivery of this deed by the grantor to the grantee, but it was in the possession of the grantee after the death of his father, and by him placed on record. It is claimed by plaintiffs in error that it is incumbent on a grantee who is in possession of a deed, to show affirmatively, a delivery. We do not understand the law so to hold. The requisites. of a deed to convey land, are, signing, sealing, and delivery. When a deed is produced by the grantee named therein, what are the presumptions of law? They are, that the deed was signed and sealed according to its purport, and the grantee named in it, having it in his possession, is presumed to have received it from the grantor. In the absence of all fraud in the case, and none is charged or shown in this case, this presumption must obtain and must prevail, unless rebutted by some strong facts in evidence. The formal act of signing, sealing, and delivery is the consummation of the deed, and the burden is always on the grantor to prove clearly that the appearances are not consistent with the truth. The presumption is against him, and the task is upon him to destroy that presumption, by clear and positive proof, that there never was a delivery. Sowerby v. Arden, 1 Johns. Ch. 239; Chandler v. Temple, 4 Cushing, 285. Opinion of the Court. The magistrate who took the acknowledgment of this deed testifies that he had a conversation with John Douthit, the grantor, before he took the acknowledgment, in which Douthit said he had given his older children as much as he could afford, and wanted him to take the acknowledgment of a deed to William. He said he was getting old and wanted to make this deed to William, so that there would be no trouble about it afterward. He said he calculated the property he got of William's mother to be for him; and he heard him say, at different times, after the deed was acknowledged, that the farm belonged to William, but that he expected to live on it the balance of his days. On the cross-examination of James Patterson, a witness for defendants in error, he testified that when talking about this land, he understood William to say his father had made him a deed, and this was said in the lifetime of John Douthit. This declaration of William was called out by the plaintiffs in error, and is evidence for him. In connection with this, it is in proof William went into possession of this land in 1860, and continued in possession, exercising acts of ownership over it, and claiming it as his own up to the time of the death of his father, he cognizant of the fact; and during that time, without consulting his father, he rented the land two different years. In the case of Ward et al. v. Lewis et al., 4 Pick. 518, where an assignment by indenture tripartite of an insolvent debtor, in trust for his creditors, purporting to have been delivered by the debtor to the trustees and some of the creditors, one part of which was found in the hands of the trustees, another was, several months after the date, in the hands of the creditors, and in adjusting their claims was often referred to as well by the trustees as by the creditors, the debtor's property having passed into the hands of one of the trustees, who appeared before the creditors in the character of trustee, and made proposals to the creditors in the name of all the trustees, and it was often spoken of by him as being held under the assignment, and was sold by him for the benefit of the creditors; and the debtor, Opinion of the Court. when he requested one of his creditors to execute the indenture, informed such creditor that he had assigned his property for the benefit of his creditors, it was held that this was sufficient evidence of a delivery of the deed by the debtor to the trustees and to the creditors. We are of opinion these cases fully establish the proposition that it is not incumbent on the grantee to establish, by proof, the delivery of the deed under which he claims. The possession of the deed and exercising ownership over the estate is strong presumptive evidence of a delivery. But this was a deed made by a father to his infant son, and was a voluntary settlement of this land upon the son, and the meritorious or moving cause was the property his mother had brought to the grantor, and the further fact that he had suitably advanced his other children. As to the first branch of this proposition it is well settled that the law makes stronger presumptions in favor of the delivery of deeds in case of voluntary settlements, especially when made to infants, than in ordinary cases of bargain and sale. Bryan et al. v. Wash et al. 2 Gilm. 557; Masterson et al. v. Cheek et al. 23 Ill. 72. In the view that this was a voluntary settlement upon the son, the decisions are uniform that the possession of the deed by the grantor until his death did not invalidate or defeat it. Vilbos v. Beaumont, 6 Vernon, 100; Bole v. Newton, id. 464; Boughton v. Boughton, 1 Atkins, 625; Claving v. Claving, 2 Vernon, 475. These cases were recognized as authority by Chancellor Kent in Bonn v. Winthrop, 1 Johns. Ch. 329, wherein he says: "The instrument is good as a voluntary settlement, though retained by the grantor in his possession until his death." On either hypothesis, then, the decree ought to be affirmed. A delivery of a deed is not to be proved by the party holding it, but it will be presumed, and if not delivered, the circumstances show it was a voluntary settlement, for a meritorious consideration, upon an infant, and the retention of the deed by the father until his death did not destroy its effect as a deed. Opinion of the Court. We find nothing in the record to destroy the presumption the deed was delivered to William. But if it was not delivered, and was intentionally retained by the grantor until his death, it being intended as a voluntary settlement upon the son, it must, under the authorities, have the force and effect of a valid deed conveying the fee in the land mentioned therein. No inference can be drawn, unfavorable to the defendants in error, from the fact that his parents went upon the farm while William was residing upon it, and built a house upon it. They first went into the same house with William, but the old gentleman, believing that he and his aged wife would be more comfortable in a house to themselves, and having plenty of means, he put up one for his accommodation. The old gen tleman told Andrew, one of his sons, before he built the house, that he wanted to build it for his own comfort and convenience, but was afraid his children would make a fuss about it, because he was putting more improvements on William's land than on the land of any of the other of his children. To this Andrew replied that he thought he had a right to do so, for he thought his step-mother, William's mother, brought sufficient for that purpose, and that he had a right to use his own pleasure about it. This is the testimony of Mrs. Elizabeth Stewartson, one of the heirs-at-law of John Douthit. A careful consideration of all the facts in this case satisfies us that this deed to William, if not actually delivered to him, was intended by his father as a settlement upon him, and it must be upheld as valid and effectual, in the absence of all fraud. In whatever light the case is to be viewed, we are satisfied the decision of the circuit court was correct, and we affirm the decree. Decree affirmed. 23-62D ILL. 62 354 67a 567 Syllabus. THOMAS O. SMITH v. ALICE E. SLOCUM. 1. TRESPASS TO THE PERSON-preservation of order in party's family. The authority to govern is placed by the law in the hands of the father, as the head of the family. It is as unlawful for a grown son or daughter to create a disturbance in the family as for a mere stranger; and the father may as rightfully interpose to preserve the good order and propriety of his household in the one case as in the other. 2. SAME. Where a grown daughter, who had been married and had left her husband and was living in her father's family, got into an angry dispute with a hired girl, and when ordered by her father to leave and go to her own room, refused to do so, and in her dispute with her father, made remarks imputing a want of chastity in her step-mother in her presence, and in that of several others, it was held that the father had a right to protect his wife from such slanderous abuse the same as from a mere stranger, and to exercise his authority as the head of the family in moderation to preserve the order of his family, and if in so doing he used no more force than was necessary, he was not liable in trespass. 3. NEW TRIAL-finding against the weight of evidence. Where the testi mony of the plaintiff in an action of trespass for personal injury is wholly unsupported as to the material facts, and is contradicted by the testimony of the defendant and several other disinterested witnesses as to such material facts, and no reason appears for rejecting or discrediting the testi mony of the defendant and his witnesses, and the verdict of the jury can be supported on no other ground: Held, on appeal, that the verdict was against the weight of the evidence. 4. SAME. It is the duty of a jury to find according to the weight of the evidence, and not capriciously on the testimony of a single witness who is a party to the suit, in opposition to the evidence of numerous other unimpeached and intelligent witnesses, who appear to have stated the details of the facts honestly as they saw and heard them. 5. SAME. It is an unwarranted assumption of power in a jury to reject the evidence of a great number of disinterested and unimpeached witnesses and found their verdict alone on that of an interested witness who is a party to the suit. Their verdict should be a just and fair conclusion from the whole evidence. 6. SAME. In all that class of cases sounding merely in damages, where the recital of the facts touch the sympathies or arouse the prejudices to such an extent as to obscure the understanding of the jury and prevent them from exercising their better judgment, it is the plain duty of courts to super |