Johnson v. Fulk
Decision Date | 20 February 1918 |
Docket Number | No. 11482.,11482. |
Citation | 118 N.E. 706,282 Ill. 328 |
Parties | JOHNSON v. FULK et al. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Stark County; John M. Niehaus, Judge.
Suit by Addie Johnson against David Fulk and others. From a decree dismissing the bill, complainant appeals. Decree reversed, and cause remanded, with directions.
Tichenor, Todd & Wilson, of Peoria, for appellant.
J. H. Rennick, of Toulon, J. W. Fling, Jr., of Wyoming, and F. B. Brian, of Toulon, for appellees.
Levi Fulk died intestate June 16, 1915, owner of record of the north half of the northwest quarter of section 30 and the north half of the northwest quarter of section 15, both in township 14, range 7, in Stark county. Afterward, on July 9, 1915, two deeds made by him were filed for record, one a quitclaim deed dated August 7, 1900, to his daughters Eliza Fry August 7, 1900, to his daughters Eliza Fry northwest quarter of section 15, and the other a warranty deed dated August 22, 1911, to Mary McCormick for life, with remainder to her children, of the south half of the northwest quarter of the northwest quarter of section 30. On July 30, 1915, there was filed a quitclaim deed dated June 16, 1904, made by Levi Fulk to his sons Felix M. Fulk, John Fulk and David Fulk, of the north half of the northwest quarter of section 30, a part of which was also described in the deed to Mary McCormick. The wife of Levi Fulk died prior to his death, and there was no administration of his estate. If the deeds were valid, he left no property. The appellant, Addie Johnson, one of the grandchildren, daughter of Elizabeth Ellen McManus, a deceased daughter of Levi Fulk, filed her bill in this case in the circuit court of Stark county praying the court to set aside the deeds on the ground that they were never delivered by the grantor and for partition of the land. The bill was answered with denials that the deeds were not delivered, with the exception that the grantees in the deed of June 16, 1904, by their answer denied that the subsequent deed to Mary McCormick was ever delivered. The issues were referred to a special master in chancery, and on the hearing before him two of the defendants who were grantees in the deeds testified under an objection that they were not competent. The master reported all the evidence taken before him, and his conclusions therefrom, finding as facts the making of the deeds, which was not denied, but finding nothing as to the delivery of them, which was the issue of fact. He found and reported as a matter of law that the grantees in the deed of August 7, 1900, were the owners of the land therein described, that the grantees in the deed of June 7, 1904, were the owners of that part of the north half of the northwest quarter of section 30 not afterward conveyed to Mary McCormick, but under the deed of August 22, 1911, Mary McCormick had a life estate in the property described in the deed to her with remainder in fee to her children, and that none of the real estate was subject to partition. The court heard the case on exceptions to the master's report, and by the decree overruled the same and approved and confirmed the report. The decree contained the finding that the deeds were delivered by Levi Fulk in his lifetime, and dismissed the bill for want of equity.
The witnesses who were objected to as incompetent because the complainant was suing as heir at law of her grandfather, Levi Fulk, were the defendants Sarah Currie and Mary McCormick. The statute (Hurd's Rev. St. 1915-16, c. 51, § 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 where the adverse party sues or defends as the heir of any deceased person, applied to these witnesses, and they were incompetent.
Addie Johnson, the complainant, her husband, George Johnson, and Levi Fulk, one of the sons and heirs at law of the grantor, Levi Fulk, testified for the complainant under objection, and it is contended that they also were incompetent as against the heirs at law of Eliza Fry, one of the grantees in the deed of August 7, 1900, who were defendants. Where a party sues or defends, not in his relation as an heir, but as a grantee, the statute does not render an adverse party incompetent. In the case of Gage v. Eddy, 179 Ill. 492, 53 N. E. 1008, Gage was defending in his own right as grantee of the executor of a deceased person, and it was held that Eddy could not be prohibited from testifying in his own behalf as to personal transactions with such deceased person. In this case the grantees in the deeds and the heirs at law of one of them were asserting title as grantees of Levi Fulk, and the issue was whether title had passed by the delivery of the deeds. The heirs of Eliza Fry were not defending in their capacity as heirs, but as claimants under one of the deeds, although if Eliza Fry had title it had descended to them. The statute did not prohibit the witnesses from testifying. Goelz v. Goelz, 157 Ill. 33, 41 N. E. 756;Hudson v. Hudson, 237 Ill. 9, 86 N. E. 661;Shipley v. Shipley, 274 Ill. 506, 113 N. E. 906.
The facts proved by competent evidence were as follows: The deed to Eliza Fry and Sarah Currie was written by Daniel J. Phenix at his bank in Bradford at the request of Levi Fulk and was dated August 7, 1900, but was acknowledged before Phenix, as notary public, on April 6, 1901. There was no explanation of any reason for the difference between the date and the time of acknowledgment, but the deed was left in the bank for safe-keeping, and Phenix could not recall anything about it except the fact of its being left for that purpose. The second deed, dated June 16, 1904, was also drawn by Phenix and acknowledged before him, as notary public, on the same day. That deed was placed with the other one in the bank for safe-keeping, and Phenix had no recollection of what occurred or what was said at the time the deed was made. The third deed, dated August 22, 1911, to Mary McCormick, purporting to convey a part of the same land described in the second deed, was drawn by J. E. Harney, assistant cashier of the Bradford bank, at the request of Levi Fulk, and was acknowledged before Harney, as notary public, on the day of its date. It was taken away by the grandson, Raymond McManus, and Levi Fulk, but Harney did not know which of the two had possession of the deed. The grantor, Levi Fulk, took the two deeds which were left at the bank for safe-keeping and gave them to his son Levi Fulk in the fall of 1904, and asked him to take the deeds and take care of them until he should call for them. The son Levi Fulk kept those deeds until the spring of 1909, when the grantor took them and delivered them to the complainant, Addie Johnson, with directions to put them away and keep them until he called for them and not to let any one else have them. In June, 1911, Levi Fulk took those deeds from Addie Johnson, saying that he was going to take them to her brother, Raymond McManus, as the brother was married at that time and keeping house, and he thought that the deeds would be safe there. After the death of the grantor all the deeds were obtained by Sarah Currie from Raymond McManus, who then lived in Montana.
Delivery is essential to the complete execution of a deed so as to pass title, and it was incumbent on the defendants, claiming title...
To continue reading
Request your trial-
Wilcox v. Coons
...N.E. 838. (4) Delivery is essential to complete execution of a deed and without showing delivery execution is not shown. Johnson v. Fulk, 282 Ill. 328, 118 N.E. 708. (5) Plaintiffs made no prima facie case, and at most a facie case only means sufficient to justify submission to a jury for d......
-
Roche v. Roche
...See, also, Valter v. Blavka, 195 Ill. 610, 63 N. E. 499;Rodemeier v. Brown, 169 Ill. 347, 48 N. E. 468,61 Am. St. Rep. 176;Johnson v. Fulk, 282 Ill. 328, 118 N. E. 706. We find some argument in the briefs of counsel for appellants that the deed from te father to appellee should be set aside......
-
In re Estate of Wittmond
...when the deed is in the physical possession of the grantee. Layton, 5 Ill.2d at 510, 126 N.E.2d at 227; see also Johnson v. Fulk, 282 Ill. 328, 333, 118 N.E. 706, 707 (1918); Wood v. Wood, 284 Ill. App.3d 718, 723-24, 219 Ill.Dec. 877, 672 N.E.2d 385, 389 (1996). The second applies in cases......
-
Allen v. McGill
... ... Vernon, for appellees.STONE, J.Appellant, Julia A. Allen, together with other heirs at law of Francis Marion Johnson, deceased, filed a bill in the circuit court of Hamilton county for partition of the south half of the southeast quarter of section 17 and the ... Johnson v. Fulk, 282 Ill. 328, 118 N. E. 706. Such grantee, however, may testify in rebuttal of evidence concerning conversations given in evidence by the ... ...