Gage v. Eddy

• Decision Date: 17 April 1899
• Citation: 179 Ill. 492,53 N.E. 1008
• Parties: GAGE et al. v. EDDY.
• Court: Illinois Supreme Court

179 Ill. 492

53 N.E. 1008

GAGE et al.

v.EDDY.

Supreme Court of Illinois.

April 17, 1899.

Appeal from circuit court, Cook county; Elbridge Hanecy, Judge.

Action of ejectment by William H. Eddy against Henry H. Gage and others. There was a judgment for plaintiff, and defendants appeal. On death of plaintiff, Clara E. Eddy was substituted. Affirmed.

Edward Roby, for appellants.

Clarence S. Darrow, H. S. Mecartney, and Morris St. P. Thomas, for appellee.

CRAIG, J.

This was an action of ejectment brought by William H. Eddy against Henry H. Gage to recover the south 20 acres of the N. 1/2 of the E. 1/2 of the N. W. 1/4 of section 28, township 38 north, range 14 east, in Cook county. The action was brought in 1889, and the first trial was had in April, 1892, when the circuit court instructed the jury to find for the defendant. On appeal we held the instruction was erroneous, and reversed the judgment. Eddy v. Gage, 147 Ill. 162, 35 N. E. 347. A second trial resulted in a verdict and judgment in favor of the plaintiff; but upon appeal the judgment was reversed on account of an error in the exclusion of certain evidence. Gage v. Eddy, 167 Ill. 102, 47 N. E. 200. A third trial resulted in a verdict and judgment in favor of the plaintiff, to reverse which the present appeal is prosecuted. The plaintiff, Eddy, claimed to own a 10-acre tract adjoining the 20 acres on the south, to recover which he also brought an action of ejectment. Plaintiff purchased the 10-acre tract in 1856, and obtained a deed of conveyance from Peleg A. Barker. The 20-acre tract he bought of Phineas E. Merrihew in 1865, receiving from him a warranty deed dated February 27, 1865, which was recorded March 30, 1865. As to both tracts of land the plaintiff claimed a regular chain of title from the government to himself. He also claimed title by limitation, based upon more than 20 years' adverse possession. The chain of record title as to the two tracts differed somewhat, but the limitation title was predicated upon the same acts of possession, so that the evidence of possessionas to one tract applied to the other; and the parties stipulated that any evidence introduced on the trial as to one tract, so far as competent, might be used on the trial involving the other tract. There have been two trials as to the 10-acre tract, both resulting in a verdict and judgment in favor of the plaintiff. In Sullivan v. Eddy, 154 Ill. 199, 40 N. E. 482, on the first appeal, in speaking of the possession of Gage, we said (page 206, 154 Ill., and page 484, 40 N. E.): ‘This case, then, like that of Eddy v. Gage, 147 Ill. 162, 35 N. E. 347, may be made to turn upon the question of fact whether the plaintiff was in the actual, adverse possession of the premises for a period of twenty years, extending up to the time the defendant, Gage, entered. By its special findings, in answer to questions propounded by the court at the instance of counsel for the defendants, the jury found this fact against them, and we think the evidence justified the finding. On this question the case is not distinguishable from the one between the same parties above referred to. The evidence clearly shows that the two tracts, after the purchase of the twenty acres in February, 1865, were treated by the plaintiff as one, and the defendant, after taking possession, has done the same.’ On a subsequent appeal (164 Ill. 391, 45 N. E. 837) the finding of the jury in favor of Eddy was again sustained. The ruling in these cases will be referred to later in this opinion. We have been favored with an able and elaborate argument by counsel for the appellant, in which various grounds for a reversal of the judgment are relied upon. The grounds for reversal will be considered in the order named in the argument.

The first point relied upon is that William H. Eddy was incompetent to testify to any matter occurring, or alleged to occur, prior to the death of Isaac N. Arnold. It appears from the record that plaintiff proved on the trial a regular chain of conveyances from the United States to Isaac N. Arnold. The deed to Arnold bears date March 8, 1842. Arnold died April 24, 1884, testate, and on the 15th of May, 1885, the defendant, Gage, obtained a quitclaim deed from Katherine Arnold, executrix and testamentary trustee of Isaac N. Arnold, and on the trial relied upon this deed for the purpose of proving title in himself. If the testimony objected to was incompetent, it was rendered so by section 2 of chapter 51 of the Revised Statutes, entitled ‘Evidence and Depositions.’ Section 1 of that statute provides that no person shall be disqualified as a witness by reason of his interest in the event of the action, as a party or otherwise, except as otherwise in the act provided. Section 2 is as follows: ‘No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard, lunatic or distracted person, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases,’-not necessary here to be stated. The defendant here was not defending as trustee, conservator, executor, or administrator, nor as heir, devisee, or legatee of any deceased person, nor as guardian or trustee of any such heir, legatee, or devisee. Gage was defending in his own right, as a grantee of the executor of the estate of Isaac N. Arnold. The statute cannot, by any fair or reasonable construction, be held to apply to the grantee of an executor, heir, or devisee. The appellant has cited a number of authorities to sustain his position, but a review of those cases is not necessary here. The question has been decided adversely to appellant's contention by this court in Goelz v. Goelz, 157 Ill. 33, 41 N. E. 756. That case, so far as the question here involved is concerned, is quite similar to the one under consideration,and it was there held that a suit against grantees of a deceased person, which is not defended by the executor, heirs, legatees, or devisees of the decased, is not one in which the plaintiff is prohibited by the statute from testifying in his own behalf as to personal transactions with the deceased. The ruling of the court in the admission of the evidence was in conformity to the case cited, and no reason is perceived why that ruling should be disturbed.

Appellant's second ground of reversal is that neither William H. Eddy nor Clement H. De Wolf was competent to testify against Henry H. Gage, or those in privity with him, as to any matter occurring or alleged to have occurred prior to the death of Isaac N. Arnold, which occurred April 24, 1884. The question in regard to the admission of this evidence is embraced in the first point considered, and needs no further discussion here.

As to the third point: The testimony of Eddy and of De Wolf, tending to show that Arnold admitted in his lifetime that his title had been conveyed by him or by the sheriff to Bowen or his assign, ought to have been rejected. The admissions objected to were statements made by Isaac N. Arnold to the witnesses, at a time when they claimed to own the land, that he had no title or interest in it. The admissions were made many years before Gage acquired any interest in the land, at a time when the records of Cook county failed to disclose that Arnold had parted with his title. The testimony of Eddy and De Wolf was read from bills of exceptions on former trials, and upon an examination of the record it will be found that the objection of appellant to the reading of the evidence was that the witnesses testifying to the conversations with Arnold were incompetent because Arnold was dead, and Gage claimed title under him. We are inclined to the opinion that the objection made would only go to the competency of the witnesses to testify as claimed in appellee's argument, and not to the admissibilityof the evidence itself, and upon this ground the court properly overruled the objection to the admission of the evidence. But, conceding that the objection was broad enough to raise the question as to the admissibility of the declarations themselves, we think the court ruled correctly on the admission of the evidence. The testimony of Clement De Wolf was substantially as follows: That he knew Isaac N. Arnold; that he had a conversation with him in reference to this land; that he went to Arnold to try to procure a quitclaim deed from him; that the witness did not have the title examined at the time he bought, but that afterwards his brother, Calvin De Wolf, a lawyer, examined it, and at his suggestion the witness went to see Arnold. He was then asked, ‘What took place between you and Mr. Arnold?’ The defendants renewed their objection that the witness was not competent, and especially objected to the reading of his testimony as to his conversation with Arnold. The court overruled the objection, and permitted the testimony to be read in evidence, and the defendants then and there excepted. The witness then answered: ‘I asked him if I could get him to give me a quitclaim deed for that property. He said he would not quitclaim it, for he had not any title to it. I described the property to him.’ William H. Eddy testified that he had known Isaac N. Arnold 45 years. The record is as follows: ‘When plaintiff was reading this testimony April 8, 1897, the following testimony as to conversation with Arnold was objected to as incompetent, Arnold being dead; but the court overruled the objection, and defendants then and there excepted.’ The testimony proceeds as follows: ‘I had a transaction with Isaac N. Arnold with reference to this...