Mackay v. Riley

• Decision Date: 22 January 1891
• Parties: MACKAY v. RILEY et al.
• Court: Illinois Supreme Court

135 Ill. 586

26 N.E. 525

MACKAY

v.RILEY et al.¹

Supreme Court of Illinois.

Jan. 22, 1891.

Appeal from circuit court, Knox county; A. A. SMITH, Judge.

Petition by Robert MacKay, as administrator of Mary Ann Riley, deceased, to sell land of the estate to pay debts. Petitioner appeals.

Chas. S. Harris, for appellant.

Dougherty & Cleveland, for appellees.

SCHOLFIELD, C. J.

The amendment to section 101, c. 3, Rev. St. 1874, approved June 15, 1887, enacts that the practice in applications for decree authorizing the sale of real estate to pay debts of the intestate ‘shall be the same as in cases in chancery;’ that the court may in such cases, among other things, ‘investigate and determine all questions of conflicting or controverted titles arising between the parties to the proceedings.’ Before the enactment of our statute permitting parties in interest to testify, (Rev. St. 1874, c. 51, §§ 1, 2, et seq.,) it was competent for one defendant in chancery to have his co-defendant testify on his behalf, provided that his co-defendant was not interested against the complainant; and therefore that, in testifying for the defendant calling him, he was not testifying for himself. Smalley v. Ellet, 36 Ill. 500;Walker v. Dement, 42 Ill. 272;Bragg v. Geddes, 93 Ill. 39. Our statute referred to, supra, does not render any one incompetent to testify as a witness who was a competent witness before its enactment. Bradshaw v. Combs, 102 Ill. 428. It necessarily follows, therefore, that Samuel Riley, the father of William Riley, and John Riley and Jennie Riley, his brother and sister, were competent witnesses in his behalf, and that the court properly permitted them, though co-defendants, to testify on the issue whether the lots described in the petition belonged to the intestate at the time of her death, or to William Riley; for their interest is clearly against William Riley, and in favor of the administrator.

The court erred in permitting William Riley himself to testify on that issue, since he falls within the exclusion in section 2 of the statute supra. But the evidence of the other witnesses not being affected by that section, and being properly admitted, was of itself sufficient to sustain the decree below; and the error in admitting his testimony consequently did no harm.

The objection urged in argument that William Riley permitted the intestate to hold herself out to the world as the owner of these lots, and, on the faith of that ownership, to incur...