Comer v. Comer
| Decision Date | 06 October 1886 |
| Citation | 119 Ill. 170,8 N.E. 796 |
| Parties | COMER v. COMER and others. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Hancock.
Bill for partition. Decree for plaintiffs. Defendant appealed. The facts are stated in the opinion.Manier & Miller and Hooker & Edmunds, for appellant.
Mack, Baird & Mack, for appellees.
The bill in this case is for partition. It appears, from the admission of all parties, that Samuel Comer died July 20, 1867, leaving two sons, Sater C. and Sylvester L. Comer, his only heirs, and Harriet Comer, his widow. Sylvester L. Comer died March 3, 1879, leaving his widow, Alice A. Comer, and Harriet L. Comer, Samuel H. Comer, and Frank G. Comer, his children and only heirs at law. Afterwards, on the twenty-fifth day of April, 1883, Harriet Comer, widow of Samuel Comer, died. It is also conceded that at the time of his death the legal title to the lands described in the bill was in Samuel Comer.
It seems that, after the death of Samuel Comer, his widow, Harriet, with her son Sater, continued to occupy the lands sought to be partitioned, up until the time of her death, which occurred at the date above stated. Shortly after the death of the widow, and after the lands thereby became freed from any claim of homestead and dower on her part, this bill was filed by the widow and heirs at law of Sylvester L. Comer, deceased, against Sater C. Comer, for partition of the lands of which Samuel Comer died seized, as described in the bill. The bill was filed on the eighth day of August, 1883. But for the defense sought to be made, there could be no complaint made as to the justness of the present decision. As before stated, there is no question made as to the fact the legal title to the lands described in the bill was in Samuel Comer at the time of his death.
His only heirs were his two sons, Sater C. and Sylvester L. Comer; and by the decree one-half of the lands is to be assigned to his surviving son, and the other half to the legal heirs of his deceased son, subject to the dower of their mother. But the partition is resisted on the ground, as stated in the answer, that Samuel Comer, at the time of his death, was also seized of either an equitable or legal title to three tracts of land other than the lands described in the bill, the legal title to which appeared from the record to be in Sylvester L. Comer, since deceased, at the time of the death of his father; that Sylvester L., several years prior to the death of his father, executed a deed conveying to him three tracts, and delivered the deed to him, but that the deed was never recorded; that during the last illness of his father, and shortly before his death, Sylvester L., without the consent of his father, possessed himself of such deed, and carried it away; that the three tracts were purchased and paid for by Samuel Comer, and the title thereof taken to said Sylvester L.; that Sylvester L. paid no part of the purchase money therefor, but held the naked legal title thereof, for the benefit of his father; that in this partition proceeding the title of these three tracts should be found and decreed to have been in Samuel Comer at the time of his death, or to have been held by Sylvester L. as an advancement by said Samuel to said Sylvester L., and, in either event, that the same be brought into hotch-pot, and the rights of all the parties in all such premises be by the court determined in this cause. Defendant, therefore, denies Sylvester L. became, upon the death of his father, seized in fee of one-half of the premises as in the bill described, as therein stated. Defendant states that Samuel Comer purchased 2.25 acres, and paid therefor $2,750, the fair price thereof, and caused the same to be conveyed to Sylvester L. as an advancement; that Sylvester L. soon after took possession thereof, and that he and his family have remained and continued in possession thereof since; that the same should be brought into hotch-pot in this cause. Defendant says he is entitled to one-half of all the land of which Samuel at his death had an interest, either legal or equitable, including the three tracts above described, the legal title of which stood of record in Sylvester L. at the death of his father; also of all the personal property owned by Samuel, and advancements made by him to Sylvester. Defendant also admits that his father made advancements to him, both in real and personal property, and he offers to bring the cost or proceeds thereof into hotch-pot, with the other property hereinbefore mentioned, and advances made to Sylvester L., as before stated, to the end that the whole may be divided and partitioned between the parties to this suit according to their respective interests in all such property and advances. Other matters are alleged in the answer, but it will not be necessary to make any statement of them to an understanding of the matters in contention. Issues by replications were formed on the matters alleged in the answer, but the court, on the final hearing, seems to have found the defense insisted upon was not established, and decreed a partition of the lands described in the bill between complainants and defendant as their interests are therein stated. Defendant brings the case to this court on appeal.
One ground of error insisted upon is that the trial court erred in rejecting, and in refusing to consider, proper evidence on the part of defendant. On the hearing in the circuit court defendant was examined, and testified at length in his own behalf; and it is said in argument, ‘It seems the court, on the final hearing, rejected his testimony.’ This record has been subjected to a careful examination, and it is not discovered that the court either rejected or refused to consider the testimony of defendant. It seems complainants objected to defendant giving testimony on his own behalf, for the reason they sued as heirs of a deceased person, but the record at that time discloses no rulings of the court in regard to it. But conceding it is true, as counsel suggest, the court did reject and refuse to consider the testimony given by defendant on his own behalf, there was no error of law in the ruling in that respect. Under the statute, (section 2, c. 51, Rev. St. 1874,) he was clearly incompetent. Complainants sue as the heirs of their deceased father. It was the estate that was in their deceased father they had sued for, and were endeavoring to recover.
This case is wholly unlike Pigg v. Carroll, 89 Ill. 205, and subsequent cases on the same subject, where the parties in interest and to the record were held to be competent witnesses in their own behalf. In those cases the parties litigating held a title derived from the same identical source, and the litigation concerned property it was conceded belonged to the parties to the suit. But here the title that was in the ancestor of complainants is disputed, and his minor heirs are endeavoring to maintain the right that was in him. That brings the objection to defendant's testimony precisely within the exception mentioned in the section of the statute cited.
But it is as to the merits of the case the chief difficulty is met with. It is certain, however, the theory advanced in the answer as to the three tracts of land-that Samuel Comer, at the time of his death, was the equitable owner, notwithstanding the legal title was in the ancestor of complainants-has very little, if anything, in...
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