Willhite v. Berry

• Decision Date: 20 February 1908
• Citation: 232 Ill. 331,83 N.E. 852
• Parties: WILLHITE et al. v. BERRY et al.
• Court: Illinois Supreme Court

232 Ill. 331

83 N.E. 852

WILLHITE et al.

v.BERRY et al.

Supreme Court of Illinois.

Feb. 20, 1908.

Error to Circuit Court, Christian County; Truman E. Ames, Judge.

Suit by James A. Willhite and others against William B. Berry and others. From a decree for plaintiffs, defendants bring error. Affirmed.

Frank P. Drennan, for plaintiffs in error.

J. C. & W. B. McBride, for defendants in error.

This was a bill in chancery filed in the circuit court of Christian county by the defendants in error against plaintiffs in error for the partition of lot 14, in block 3, in the village of Edinburg, Christian county, Ill. Answers and replications were filed and a trial was had, and a decree was entered in accordance with the prayer of the bill, and the defendants have sued out a writ of error from this court to review said decree.

It appears from the record that Henry H. Willhite died intestate December 14, 1881, seised in fee simple of said premises, upon which he resided with his family as his homestead; that he left him surviving as his widow, Martha J. Willhite, and Aaron M., James A., John H., and Otto E. Willhite, as his sons and sole heirs at law; that George P. Harrington held a mortgage upon said premises at the time of the death of Henry H. Willhite; that he subsequently filed a bill to foreclose said mortgage against the widow and heirs of Henry H. Willhite, deceased; that, after the foreclosure proceedings had ripened into a certificate of sale, the widow and heirs, with money belonging to Henry H. Willhite's estate, paid Harrington the amount of said mortgage, and he released the same by making a quitclaim deed to Martha J. Willhite and her second husband, Jacob Willhite, the said Jacob Willhite being a brother of her first husband; that on February 21, 1890, Martha J. and Jacob Willhite conveyed the said premises by warranty deed to John H. Willhite, and on December 9, 1890, John H. Willhite conveyed said premises to Isaac B. Robertson, and Robertson, on October 10, 1892, conveyed the same to John D. Davidson, and Davidson, on November 21, 1898, conveyed the same to John W. Ruby, and John W. Ruby, on February 24, 1900, conveyed the same to Edwin Ruby, and Edwin Ruby, on March 28, 1903, conveyed the same to Alexander Jones, and on March 28, 1904, Jones conveyed the same to the plaintiff in error William B. Berry; that the immediate and remote grantees of Martha J. and Jacob Willhite went into possession of said premises and paid the taxes levied thereon subsequent to the conveyance by Martha J. and Jacob Willhite to John H. Willhite, and that William B. Berry was in possession of the said premises, through a tenant, at the time this bill was filed; that William B. Berry is distracted and appears in this suit by a guardian ad litem and his conservator; that Martha J. Willhite died intestate January 16, 1903; that John H. Willhite died intestate September 18, 1898, leaving him surviving his widow and three children, one of whom has died subsequent to his death, and Otto E. Willhite died intestate, unmarried and childless, October 14, 1901.

HAND, C. J. (after stating the facts as above).

It is first contended that James A. Willhite was an incompetent witness, as he was a party to the suit, and William B. Berry was defending by his conservator. Had that question been raised in the court below, the contention of the plaintiffs in error would doubtless have been sustained. It was not there raised. James A. Willhite was called by the complainants and recalled by the defendants and fully examined by both parties without objection as to his competency as a witness relative to the heirs of Henry H. Willhite, deceased, the homestead rights of Henry H. Willhite and Martha J. Willhite in said premises, and the manner of the release of the Harrington mortgage on the said premises. There was no controversy about those facts. The defendant Berry was represented by his conservator, who was represented by an attorney; and the competency of James A. Willhite as a witness, not having been raised in the trial court, cannot be raised in this court for the first time. Doty v. Doty, 159 Ill. 46, 42 N. E. 174;Millard v. Millard, 221 Ill. 86, 77 N. E. 595. In the Millard Case, on page 91 of 221 Ill., and page 596 of 77 N. E., it was said: ‘If an objection had been interposed on the ground that the witness was not competent to testify to certain facts, it may be that the same facts could have been proved by other testimony, and the question of the competency of a witness cannot be raised for the first time in an appellate tribunal.’

It is next contended that the deed from George P. Harrington to Martha J. and Jacob Willhite was good color of title. That deed was made to release the mortgage which was on the land at the time of the death of Henry H. Willhite, which mortgage was paid by the widow from the funds of her deceased husband's estate, and the deed amounted only to a release of that mortgage. Lightcap v. Bradley, 186 Ill. 510, 58 N. E. 221.

It is finally contended that the title of the defendants in error to said premises was barred by the statute of limitations at the time this suit was begun. The premises in...