Treleaven v. Dixon
| Decision Date | 13 November 1886 |
| Citation | 119 Ill. 548,9 N.E. 189 |
| Parties | TRELEAVENv.DIXON, EX'r, etc. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Cook.
Miller, Lewis & Judson, for appellant.
James L. Norton, for appellees.SCHOLFIELD, J.
On the fifth day of October, A. D. 1870, Walter Treleaven borrowed $6,000 of Edward Morrall, for which he gave his promissory note; and at the same time he and his wife, Jane Treleaven, executed a deed of trust on certain of her real estate to Mahlon D. Ogden, to secure the payment of the promissory note. The note was not paid at maturity, and the trustee sold the property, under the power in the deed, to Alexander J. D. Dixon, sole surviving trustee under the last will and testament of Edward Morrall, who had died since executing the note and deed of trust; and the trustee executed a deed accordingly. This bill was filed by Jane Treleaven to set aside that sale on the ground that the time for the payment of the note was extended by a contract made between her husband and Edward Morrall, without her consent, after the maturity of the note, whereby the trust deed became, as she contends, released or extinguished as a security.
The fact that there was a contract between complainant's husband and Morrall, extending the time for the payment of the note as alleged in the bill, is put in issue by the denial of the defendant in his answer, and the only witness by whom the contract is claimed to have been proved is the husband of the complainant. The only question, therefore, which we deem it necessary to consider, is, was the husband a competent witness, Morrall being dead, and the adverse party defending as his executor? Counsel for the appellant contend that although the court below decreed dismissing the complainant's bill, yet that it admitted in evidence Treleaven's testimony, and that, no cross-error having been assigned in respect to the competency of this evidence, the question is not before us. This is a misapprehension. The objection to Treleaven's evidence is, clearly, not formal nor technical. If his testimony is inadmissible, the objection could in no way have been cured. In chancery cases, the whole record, including all the evidence offered, is before us; and we are required to assume that all the incompetent evidence was rejected, and all the competent evidence was admitted and considered, on the final hearing. If there is competent evidence in the record sufficient to sustain the decree, it must be affirmed; if not, it must be reversed; and this, without regard to whether the chancellor may have been right or wrong in his views as to the competency of the evidence at the hearing. Swift v. Castle, 23 Ill. 209; Tunison v. Chamblin, 88 Ill. 382; Willemin v. Dunn, 93 Ill. 520; Jefferson v. Jefferson, 96 Ill. 556; Ritter v. Schenk, 101 Ill. 387; Smith v. Long, 106 Ill. 485.
At common law, the husband and wife were not competent witnesses for or against each other in suits between them and other parties; and to what extent they are now competent witnesses, in such cases, depends entirely upon the language of the statute to the extent that it declares, and no further, they are competent.
The first section of our statute, entitled ‘Evidence and Depositions,’ (chapter 51, 1 Starr & C. St. 1070,) removes the common-law disqualification to parties testifying, in these words: ‘No person shall be disqualified as a witness, in any civil action, suit, or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof, as a party or otherwise. * * *’ Then the second section shows in what cases the disability is not removed: ‘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, by virtue of the foregoing section, when any adverse party sues or defends as the * * * executor of any deceased person.’ Then comes section 5, declaring under what circumstances husband and wife shall be competent to testify for or against each other: ‘No husband or wife shall, by virtue of section 1 of this act, be rendered competent to testify for or against each other, as to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of the marriage, or...
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Geiger v. Merle
...competent evidence was considered. Oswald v. Nehls, 233 Ill. 438, 84 N. E. 619;Goelz v. Goelz, 157 Ill. 33, 41 N. E. 756;Treleaven v. Dixon, 119 Ill. 548, 9 N. E. 189. Though Henry J. Merle talked with the original complainant about the papers which she was to sign, there was nothing to ind......
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Schwebel v. Sheets, 5-84-0430
...estate itself is in no event to be reduced or impaired' * * *." (182 Ill. 464, 470, 55 N.E. 373, 375; see also Treleaven v. Dixon (1886), 119 Ill. 548, 9 N.E. 189, 191; 81 Am.Jur.2d Witnesses §§ 319, 321 (1976).) Further, we would be remiss in failing to note that the estate in question her......
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Colbert v. Rings
...the administration of justice, and no reason has been suggested, nor is any perceived, why it should be changed.’ In Treleaven v. Dixon, 119 Ill. 548, 9 N. E. 189, it was said: ‘In chancery cases the whole record, including all the evidence offered, is before us, and we are required to assu......
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Heineman v. Hermann
...33 N.E.2d 425;Gillam v. Wright, 246 Ill. 398, 92 N.E. 906,138 Am.St.Rep. 243;Heintz v. Dennis, 216 Ill. 487, 75 N.E. 192;Treleaven v. Dixon, 119 Ill. 548, 9 N.E. 189;Crane v. Crane, 81 Ill. 165. It is further held that such incompetency continues after the marriage relation is dissolved, ei......