Goelz v. Goelz

• Decision Date: 01 April 1895
• Parties: GOELZ et al. v. GOELZ.
• Court: Illinois Supreme Court

157 Ill. 33

41 N.E. 756

GOELZ et al.

v.GOELZ.¹

Supreme Court of Illinois.

April 1, 1895.²

Appeal from superior court, Cook county; Phillip Stein, Judge.

Bill by William Goelz against William Goelz, Jr., and Josephine Goelz. Complainant obtained a decree. Defendants appeal. Reversed.

Thompson & McCaslin, for appellants.

Johnson, Herring & Brooke, for appellee.

BAKER, J.

In 1880, William Goelz, the appellee, was residing with his wife, Josephine Goelz, at Bowmanville, in Cook county, Ill. He was a German by birth, and a physician by profession, and had accumulated some property. He was at that time 61 years of age, and his wife was several years older. They had three living children,-William Goelz, Jr., about 33 years old; Carl August Goelz, a few years younger; and a daughter, Dorthea F. Goelz, since intermarried with one August Grossman. William Goelz, Jr., and Carl August Goelz were married men, Louisa Goelz being the wife of the former and Anna Goelz the wife of the latter. William Goelz, Jr., had no property or money, and was working for a very small compensation and on commissions in the real-estate office of B. F. & M. Weber, in Chicago. The premises in controversy in this suit are 10 acres of land in the town of Lake View, in Cook county. On the 12th day of February, 1880, said 10 acres were sold at public venue, at the south main-entrance door of the criminal court building in Chicago, by one Edward Knauer, trustee, under a trust deed executed by John Krummenacher and wife to secure the payment of a note for $2,000 and interest. William Goelz, Jr., had learned of the proposed sale some days prior to the date it was advertised to take place, and that the property could probably be bought for the amount of the debt, interest, and expenses of sale, and informed both his father and his mother in regard thereto. He attended the sale, taking with him a certified check for $300, dated said 12th day of February, 1880, signed by Bernard F. Weber, and payable to ‘Edward Knauer (trustee) or order.’ He bid in the property for $2,400 in the name of his mother, Josephine Goelz, and delivered to Knauer, the trustee, the check for $300, in part payment of the purchase money. The trustee thereupon made to Josephine Goelz a trustee's deed for the land. The deed bears date February 12, 1880; was acknowledged April 28, 1880; and was filed for record on July 19, 1880. The residue of the purchase money was paid to the trustee by William Goelz, Jr., in March and April, 1880; he having obtained most of the money necessary for so doing by getting Bernard F. Weber to cash certain notes secured by mortgages, and known as the ‘Deinzer note,’ for $1,090; the ‘Zender note,’ for $600; and the ‘Beil note,’ for $200. It seems that William Goelz, the father, was the owner of each and all of said last-mentioned notes. It also satisfactorily appears that, prior to the trustee's sale, William Goelz, Jr., had arranged with Weber to cash the notes in the event he bought the property. About the time of the above transaction, or shortly thereafter, Josephine Goelz met with an accident by which a leg was broken. She afterwards suffered greatly from rheumatism, and her lower limbs were paralyzed, and the latter five years of her life she was a confirmed invalid. She and her husband gradually became estranged from each other, until, finally, they were not even on speaking terms. In 1884 appellee was told that his wife had executed a will in which she had devised the land in question. Thereupon, on the 12th day of September, 1884, he exhibited the original bill filed herein, making his wife and his son, william Goelz, Jr., parties defendant thereto. Josephine Goelz had not in fact made a will, but on the 26th day of July, 1884, she had executed and acknowledged a deed by which she conveyed the south half of the land to William Goelz, Jr., and had also executed and acknowledged a certain other deed, by which she conveyed the north half of the premises to Carl August Goelz. Both of said deeds were delivered and filed for record on said 26th day of July, 1884; and each deed states on its face that it was made for the consideration of one dollar, and for other good and valuable considerations. The substance of the original bill was that complainant gave to William Goelz, Jr., $2,400, and directed him to purchase the land in the name of the complainant; that said agent fraudulently took the deed in the name of Josephine Goelz; and that complainant, as soon as he heard that the deed was in the name of Josephine, requested her to convey to him, which she refused to do. The prayer was that a trust be declared for the use of the complainant, and that Josephine be decreed to convey to him. Josephine Goelz and William Goelz, Jr., each filed answers, and denied the allegations of the bill. On October 23, 1885, William Goelz, Jr., made a quitclaim deed for the south half of the land to John Jacobs, a brother-in-law; and on December 28, 1885, John Jacobs and his wife made a quitclaim deed for the same property to Louisa Goelz, wife of William Goelz, Jr. Each of said deeds stated a nominal consideration of one dollar. Josephine Goelz died, intestate, on or about the 18th day of April, 1886. On June 20, 1887, the complainant filed a supplemental bill. Said bill made reference to the prior bill and answers, and replications to the latter; stated the executions of the two deeds of July 26, 1884, and of the deeds of October 23 and December 28, 1886; and alleged the death of Josephine Goelz. It charged that all of said conveyances were made without consideration, and in fraud of the complainant's rights. It made William Goelz, Jr., Carl August Goelz, Dorothea F. Grossman, August Grossman, and John Jacobs, and his wife, defendants, and prayed for relief against them. Jocob and his wife filed disclaimers. Dorothea F. Grossman and her husband made default. Carl August Goelz, William Goelz, Jr., and Louisa Goelz filed answers in denial of the averments and charges contained in the original and supplemental bills. Various amendments were afterwards made to both the supplemental bill and the answers, but it is not deemed necessary to here specify what they cover. The cause was referred to the master in chancery, who took the depositions and proofs, and reported them to the court, with his conclusions. The decree of the superior court of Cook county, entered December 26, 1893, granted the relief prayed for by appellee in his bill of complaint, and decreed that the title to the ten acres of land was held in trust by Carl August Goelz and Louisa Goelz, and required them to convey to appellee, as being the equitable owner of the land.

Appellants claim that all of the testimony given by appellee himself as a witness is incompetent, and should be disregarded. They base their claim on section 2 of the chapter on ‘Evidence and Depositions,’ which provides that no party to any civil action, suit, or proceeding shall be allowed to testify therein in his own behalf when any adverse party sues or defends as the executor, administrator, heir, legatee, or devisee of any deceased person. This contention is met by appellee by the counterclaim that objections to the competency of a witness or to testimony cannot be made for the first time in this court; and that no objections were interposed before the master as to the competency of Dr. William Goelz as a witness, nor as to the competency of his testimony; and that no objections or exceptions to his testimony were filed in the court below. Neither the claim of appellee nor that of appellants is well grounded. It is to be borne in mind that the question here does not go to mere matter of informality or irregularity, which might be cured in the trial court. The question before us concerns the legal competency of certain evidence; and the question arises, not in an action at law, but in a suit in equity. In Swift v. Castle, 23 Ill. 209, this court said: ‘The question presented upon the trial before the chancellor, as well as in the appellate court, is, upon all the legitimate evidence in the cause, what decree should be rendered? The chancellor being the judge of both the law and evidence, the presumption is that, in rendering his decree, he will only regard that which is legal and pertinent. * * * It is the correct practice for th chancellor, after the evidence is heard, to regard no portion of it which is immaterial or illegal, and to decide the case alone on the legal evidence adduced. Such is believed to have been the uniform practice, which has been adopted from considerations of convenience, and is in no way calculated to hinder or delay the administration of justice, and no reason has been suggested nor is any perceived why it should be changed.’ In Treleaven v. Dixon, 119 Ill. 548, 9 N. E. 189, it was said: ‘In chancery cases the whole record, including all the evidence offered, is before us, and we are required to assume that all the incompetent evidence was rejected, and all the competent evidence was admitted and considered on the final hearing. If there is competent evidence in the record sufficient to sustain the decree, it must be affirmed. If not, it must be reversed, and this without regard to whether the chancellor may have been right or wrong in his views as to the competency of the evidence at the hearing.’ And to the same effect are Stone v. Wood, 85 Ill. 603;Tunison v. Chamblin, 88 Ill. 378;Moore v. Tierney, 100 Ill. 207;Ritter v. Schenk, 101 Ill. 387;Smith v. Long, 106 Ill. 485;Gordon v. Reynolds, 114 Ill. 118, 28 N. E. 455; and numerous other cases.

It is plain, however, that appellants ask too much when they insist upon excluding from consideration the whole of the testimony given by appellee in his own behalf. Appellants are not defending as heirs, legatees, or devisees of Josephine Goelz, deceased, but as immediate and remote grantees of said deceased. Consequently the case does not fall...