Griffin v. Griffin

• Decision Date: 16 June 1888
• Citation: 125 Ill. 430,17 N.E. 782
• Parties: GRIFFIN v. GRIFFIN et al.
• Court: Illinois Supreme Court

125 Ill. 430

17 N.E. 782

GRIFFIN

v.GRIFFIN et al.

Supreme Court of Illinois.

June 16, 1888.

Appeal from circuit court, Mercer county; JOHN J. GLUM, Judge.

Bill to set aside a deed as a cloud upon title. The material facts of this case are as follows: John Griffin died in Mercer county, Ill., in 1865, seized of the land in controversy. He left a will, in which he devised all of his land to his wife, Mary Griffin, to use during her life-time, with power to sell and convey any of it that she might need for her support; the remainder to go to his children. He left four children,-three sons, George, Henry G., and Septimus, and one daughter, Hulda Calkins. A deed bearing date May 23, 1866, was placed upon record in Mercer county, on April 16, 1868, which was signed by Mary Griffin, conveying to George Griffin the land in controversy. In 1886 Amelia Griffin and the other defendants commenced a suit in ejectment against Mary Griffin to recover the land; whereupon Mary Griffin filed her bill of complaint to set aside the deed to George Griffin as a cloud upon her title. The bill states that the complainant was the owner of the land; that by some means unknown to her a deed to George Griffin from her was placed upon the records of Mercer county, April 16, 1868, dated May 23, 1866; that she had no knowledge that said deed was in existence, or that it was recorded, until March, 1886, when she obtained an abstract of title to the land; that she never knowingly and intentionally executed said deed; if she did executed it, it was through a mistake, not having sold or given the land to the grantee, and that she never received anything for the same; that George Griffin never claimed to own the land, and never exercised any acts of ownership over the same, but always claimed that the same was owned by complainant; that George Griffin rented the land from her for the years 1877 to 1880, inclusive, and occupied it as her tenant; that complainant was in the open and exclusive possession of said land, except as occupied by her son George, as her tenant, and used the same for agricultural purposes, and paid the taxes all of the time; that the deed so recorded is a fraud upon her rights and ought to be set aside; that George Griffin is dead, and left Amelia Griffin and the other defendants his widow and heirs at law; prays that the deed be set aside and held for naught, to remove the cloud upon her title, and for general relief. The answers deny all of the material allegations of the bill. On the hearing of the cause complainant introduced the deed in evidence, and offered to testify in her own behalf. The defendants objected to her testimony, because she was a party to the suit, and, the grantee of the deed being dead, witness was incompetent, under Starr & C. St. Ill. c. 51, par. 1, § 2, which provides that ‘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, 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, namely: First. In any such action, suit, or proceeding a party or interested person may testify to facts occurring after the death of such deceased person,’ etc. The court sustained the objection. Henry G. Griffin was offered, and at request of defendant John Griffin's will was introduced, and Henry G. Griffin objected to as a witness, because he was an interested party, and the court sustained the objection, which ruling was excepted to by complainant. The complainant then introduced witnesses who testified to the declarations of George Griffin that he rented the land from complainant; that the land was not his; and that complainant occupied and used it exclusively for 20 years or more, and paid the taxes on the same. John C. Pepper, an attorney, testified to a conversation between George Griffin and himself, and of another between George and the complainant with him, in which the complainant stated certain facts to him in regard to a deed then before him, and asked his opinion as to what was necessary to convey title. This witness was objected to by complainant, for the reason that the information came to the witness in his capacity of attorney, and was privileged. This objection was overruled by the court, and excepted to. Amelia Griffin testified that she found the deed among her husband's papers after his death. Her testimony was objected to by complainant. Objection overruled. The court entered a decree dismissing the bill, which is assigned for error.I. N. Bassett

, for appellant.

H. Bigelow, for appellees.

SCHOLFIELD, J.

1. The material part of the testimony of Amelia Griffin, widow of George Griffin, deceased, is that she found the deed, after the death of George Griffin, among the papers that had belonged to him. This being ‘a fact,’ in the language of the statute, ‘occurring after the death of such deceased person,’ it is competent to prove it by her. Rev. St. 1874, p. 488, §§ 1, 2. The statement that she saw it before his death, at the time it was acknowledged, in view of the entire evidence in the case, is not very important; but we have no doubt that it, also, is competent. While it is true that complainant's title was originally derived under and by virtue of the will of her deceased husband, yet that title is not here disputed. It is conceded she had title, and it is immaterial how it was acquired; but it is contended by appellees that she subsequently conveyed it to George Griffin, while she denies that the did so; and this presents the only issue. She therefore neither sues nor defends here as conservator, executrix, administratrix, heir, legatee, or devisee. See Pigg v. Carroll, 89 Ill. 205. The minor defendants, however, defend as heirs of George Griffin deceased, and...