Mccann v. Atherton

• Decision Date: 29 March 1883
• Citation: 106 Ill. 31,1883 WL 10179
• Parties: WILLIAM L. MCCANNv.PRUDENCE ATHERTON et al.
• Court: Illinois Supreme Court

106 Ill. 31

1883 WL 10179 (Ill.)

WILLIAM L. MCCANN

v.PRUDENCE ATHERTON et al.

Supreme Court of Illinois.

Filed at Springfield Mar. 29, 1883.

APPEAL from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding. Mr. IRA J. BLOOMFIELD, for the appellant:

The defendant Amos Rutledge was a competent witness in behalf of the complainant, the adverse party, when called by him. Rann et al. v. Rann, 95 Ill. 433; Caprez v. Trover, 96 Id. 456.

All parties are competent witnesses in partition proceedings, because it is immaterial whether they derive title through purchase or descent. Pigg v. Carroll, 89 Ill. 205; Mueller v. Rebhan, 94 Id. 142; Kershaw v. Kershaw, 102 Id. 307.

The circuit court erred in excluding the evidence of the defendant Amos Rutledge, for, considering it and giving it proper weight, the decree must have been for complainant.

The deed of Amos Rutledge only being given to Dickerson to get his wife's signature, did not become operative. Placing it in the hands of the grantee for that purpose only, did not constitute a delivery of the deed. 2 Washburn on Real Prop. 612, sec. 47; Fraser v. Davis, 2 S. C. 56.

Mr. E. M. PRINCE, Mr. A. G. KARR, and Messrs. ROWELL & HAMILTON, for the appellees:

The recording of a deed affords prima facie evidence of its delivery. Himes v. Keighblinger, 14 Ill. 469; Warren v. Town of Jacksonville, 15 Id. 236.

Where a deed duly executed is found in the hands of the grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption. The unsupported evidence of the grantor, some fifteen or twenty years after the date of the deed, can not be received to rebut such presumption. Tunison v. Chamblin, 88 Ill. 379; Reed v. Douthitt, 62 Id. 348.

A person who is a necessary party to a bill, and who, if a party, would not be competent to testify as against parties defending as heirs, falls within the meaning of the statute, and will be treated as incompetent the same as if he were a party to the suit. While both parties to a transaction are living they are upon a perfect equality, and can each testify. When one is dead the other is not permitted to give evidence, and thus take advantage of the heirs of the deceased, who are wholly ignorant of the facts. Alexander v. Hoffman, 70 Ill. 115; Pyle v. Oustatt, 92 Id. 215; Mahoney v. Mahoney, 65 Id. 406; Merrill v. Atkins, 59 Id. 20; Ruckman v. Alwood, 71 Id. 155; Fisher v. Fisher, 54 Id. 235; Rev. Stat. sec. 2, chap. 51, “Evidence and Deposition.” See, also, sec. 7 of the same chapter.

That the deed should operate as an escrow, it is necessary that the delivery should be made to a stranger, and not to the grantee. Dawson v. Hall, 2 Mich. (Gibbs,) 392; Ward v. Winslow, 4 Pick. 519; Arnold v. Patrick, 6 Paige Ch. 310; Worrall v. Munn, 1 Seld. (N. Y.) 238; Jordan v. Pollock, 14 Ga. 155; Duncan v. Pope, 47 Id. 445.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

Originally the bill in this case was brought by William L. McCann, against Prudence Atherton, who had a life estate in the premises in question, to prevent waste. After the death of the life tenant a supplemental bill was filed, to which other persons were made parties, praying for a partition of the property. Before a hearing of the case was had, a second supplemental bill was filed by complainant, the object of which was to set aside a deed made by Amos Rutledge to R. F. Dickerson, since deceased, for two-sevenths of the land involved, on the ground the deed had not been delivered to the grantee, except upon conditions that had not been performed. On the hearing of the case a decree for partition was rendered on the first supplemental bill,--the court finding the interests of the parties to be as therein stated,--and dismissed the second supplemental bill, so far as complainant claimed any interest in the premises under the deed from Amos Rutledge and wife to such lands, as against the heirs of R. F. Dickerson, under a former deed from Amos Rutledge alone. It is the decision of the court dismissing the second supplemental bill of which complaint is made.

Complainant, to maintain his bill in that regard, offered Amos Rutledge, his grantor, to prove the deed previously made by him to Dickerson was not delivered to the grantee except on conditions that had not been performed, and hence the deed was not valid; but the court, on objection being made, held the witness was incompetent, and therefore excluded his testimony. That decision is assigned for error. It will be seen the witness was directly interested in the event of the suit. His deed was made to complainant with a view to enable him to maintain the suit for their mutual benefit. Should complainant succeed in setting aside the deed made by witness to Dickerson, the witness would himself, in that event, be entitled to an interest in the land recovered from the heirs of Dickerson. So manifest is the interest of the witness in the result of the suit, it can not reasonably be a matter of dispute. The statute in regard to the competency of witnesses in civil suits provides, in unambiguous terms, that “no 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 statute, when any adverse party sues or defends * * * as heir of any deceased person.” That is precisely the case here. The defendants...