Wilson v. Wilson

• Decision Date: 01 November 1895
• Citation: 158 Ill. 567,41 N.E. 1007
• Parties: WILSON et al. v. WILSON et al.
• Court: Illinois Supreme Court

158 Ill. 567

41 N.E. 1007

WILSON et al.

v.WILSON et al.¹

Supreme Court of Illinois.

Nov. 1, 1895.

Appeal from circuit court, McDonough county; Charles J. Scolfield, Judge.

Bill by William Wilson and others against Samuel Wilson and others. Defendants obtained a decree. Complainants appeal. Modified.

Agnew & Vose, for appellants.

Sherman & Tunnicliffs, for appellees.

BAKER, J.

Willaim Wilson and others filed their bill, and afterwards their amended bill, against Samuel Wilson and others, to set aside a deed to and for partition of certain lands described in the bill, derived from a common ancestor, Samuel Wilson, who is referred to in the record as ‘Col. Wilson.’ The bill named one O. F. Piper also as a party defendant. The defendants answered, Piper filing a separate answer, claiming liens on the land in controversy represented by two different mortgages. He also filed his cross bill praying foreclosure of the same. Upon a hearing before the chancellor upon the amended and cross bills, answers, replications, exhibits, and proofs, a decree was entered dismissing the complainants'bill and amendment thereto for want of equity, and ordering foreclosure of the mortgages in accordance with the prayer of the cross bill. To reverse, that decree the complainants prosecute this appeal.

No question is made of the justice of that part of the decree foreclosing the mortgage held by O. F. Piper. The complaint is that the court below erred in not decreeing partition of the lands in controversy in accordance with the prayer of the original and amended bills. And the ‘bone of contention’ is a deed made by Col. Wilson, purporting to convey said lands to three of his children, Lizzie Elson, Ed. and Samuel Wilson, defendants herein, and claimed by them to have been delivered. Complainants deny that the deed was ever delivered, and upon the question of delivery rests the decision of this case. The undisputed facts in the case are that on September 2, 1889, Col. Wilson was the owner of a large farm, situated in McDonough county; that on said day he made and acknowledged a deed purporting to be an absolute and unconditional conveyance of said land to the defendants Lizzie, Ed., and Samuel, and shortly thereafter handed the same to said Lizzie, in whose possession it has remained ever since; that said deed was never recorded until the day follwing the death of the grantor, who died intestate, November 30, 1893, and left surviving him the complainants and the defendants Lizzie, Ed., and Samuel, his only heirs at law. At the hearing a large number of witnesses were examined, most of whom were put upon the stand for the purpose of disproving on the one side, and on the other of establishing, the fact of delivery of the deed in controversy. Lizzie Elson and Samuel Wilson were permitted to testify over the objection of complainants. This was error. Complainants sue as the heirs of their deceased father, whose title is here disputed; and the defendants, seeking to disprove such title, were therefore not competent witnesses. Hayes v. Boylan, 141 Ill. 400, 30 N. E. 1041;Comer v. Comer, 119 Ill. 170, 8 N. E. 796.

Disregarding such of the testimony as was incompetent, a clear preponderance of the evidence shows that Col. Wilson always treated the land in question as his own, as well subsequent as prior to the alleged delivery of the said deed. The land remained on record as his until after his death, up to which time he paid the taxes thereon with his own money. At different times subsequent to said alleged delivery he made repairs on the premises, leased the land to tenants, collected rents for his own use, and advertised the land for sale in a public newspaper. And on March 1, 1890, he made and delivered to O. F. Piper a mortgage deed thereon to secure a loan of $500. All of these acts were done with the knowledge and acquiescence of the defendants. The evidence further shows that one of said leases was drawn up by defendant Samuel Wilson, and signed by him as agent for his father, who was named therein as owner and lessor. The defendants always spoke of the land as their father's, and so treated it. In a replevin suit wherein Col. Wilson was plaintiff, tried in September, 1891, Samuel Wilson swore that this land belonged to his father, and that he and his brother Ed. were his father's tenants. There also appears in evidence the following letter, written by defendant Lizzie Elson, and mailed by her to complainant Alice M....