Morse v. Thorsell

• Decision Date: 30 September 1875
• Citation: 78 Ill. 600,1875 WL 8542
• Parties: SARAH G. MORSEv.ELLEN THORSELL.
• Court: Illinois Supreme Court

78 Ill. 600

1875 WL 8542 (Ill.)

SARAH G. MORSE

v.ELLEN THORSELL.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. LANPHERE & BROWN, for the appellant.

Mr. JUSTICE WALKER delivered the opinion of the Court:

At the September term, 1874, of the Knox circuit court, appellee filed her petition to have dower assigned to her in premises held by appellant. She made appellant and her husband parties to the proceeding. He filed an answer, and she filed two pleas. The first denies that the husband of appellee ever had a fee simple title to the premises, or a legal fee therein, and if he had any interest, it was but equitable. The second plea averred that appellant was a bona fide purchaser without notice, and for full value. The husband denies, in his answer, that the husband of petitioner was ever seized of either a legal or an equitable estate in the premises.

To the first of appellant's pleas a replication was filed, and also to the answer of her husband. Appellee demurred to the second plea, and the court held it bad, and appellant abided by her demurrer. A trial was had on the answer and the first plea, and the court found that appellee was entitled to dower in the premises, and appointed commissioners to assign the same. They reported that the premises were not susceptible of division, without manifest prejudice to the parties.

Thereupon a jury was impanneled to assess the damages, and to ascertain the sum that should be paid annually by appellant in lieu of dower. They found the damage for withholding the dower at $125, and that the annual sum of $25 be paid to appellee by appellant. A decree was rendered accordingly, and an appeal was prayed and perfected.

The evidence on this question is scant. Appellee is the only person who testified in regard to the ownership by her husband. She testified that her husband purchased the lot of Hawkinson and Ockenson about twenty years ago, and at once erected a house on it, and he and she lived in it three or four years; that her husband sold it to Matthew Lynch; that the deed was made from Hawkinson and Ockenson to Lynch, but she does not know the reason why it was so made; that her husband paid for the lot when he bought it; that when her husband sold to Lynch, the latter gave a mortgage back to secure $650, she thinks. On her cross-examination, she says she knew that her husband paid for the lot, because he told her so, and Hawkinson and Ockenson told her the same; that she was not present when her husband paid the money. She stated, in answer to a question whether her husband paid all of the money before he sold to Lynch, that her husband, when he got the deed, sold to Lynch, and got the money of him to pay and get the deed, and then he sold the deed to Lynch. She testified that her husband purchased about twenty years since, and sold to Lynch eighteen or nineteen years ago.

When we take into consideration the fact that the chain of title fails to show that Thorsell ever had any interest of any kind in this land, and that this is an effort to prove that Thorsell had, previous to appellant's purchase of Lynch, held an equitable estate of inheritance in fee to these premises, it would seem clear that it falls far short of the requisite clearness for the purpose. Title to real estate, when admissible by verbal evidence, can only be established when it is clear and satisfactory. Here, appellee testified that her husband paid the purchase money for the lot, but her cross-examination shows that she only knew so because her husband and his vendors told her so, and not from any knowledge of her own. This was hearsay evidence, was objected to on the trial, and should have been rejected.

Strike out this evidence of payment, and the remainder of her testimony fails to prove any payment, or anything that even renders it probable that her husband...