Walsh v. Wright

Mr. Justice Mulkey delivered the opinion of the Court: A reversal of the decree in this case is urged on several grounds, none of which go strictly to the merits of the controversy. It is urged, in the first place, the court erred in considering the testimony of the complainant, Elizabeth Wright, on the ground that her evidence would not have been competent as against Ellen McIntyre had she been continued as a defendant in the case, for the reason Ellen was defending as heir, and it is insisted that the witness’ competency can not be restored by dismissing the bill as to Ellen, and in support of this position the case of Alexander v. Hoffman, 70 Ill. 114, is cited. We do not regard that case as sustaining the position of appellants. It is neither in principle nor in its facts like the present case. In that case the assignee of an alleged contract of purchase was seeking to enforce it against the heirs of the alleged vendor without making the original purchaser and assignor of the contract a party, and it was held that the assignor of the contract was a necessary party, and that he was not a competent witness as against the heirs. In that case the interests of the complainant and of the omitted party who was held incompetent to testify, were identical, and directly antagonistic to the interests of the heirs of the alleged vendor. In the present case, after dismissing the bill as to Hammond, Ellen McIntyre, and the sheriff, the whole object and purpose of the bill was to have the sheriff’s deed set aside as a cloud upon the title of complainant,—a matter in which Ellen McIntyre had not the slightest interest. The complainant, as alleged in the bill, and clearly shown by the proofs, already had both the legal and equitable title to four-fifths of the property, and the sheriff’s deed to Walsh was clearly a cloud .upon her .title to that extent, and so far as this deed was a cloud upon her title, was a matter in which, as just statéd, Ellen did not have the slightest interest. Had the bill, as amended, sought to enforce a specific performance of the contract as to the remaining fifth of the estate, the legal title of which is still in Ellen, or if the bill, as amended, had sought in any manner to affect the original contract under which appellee claims the remaining fifth of the land, for which she has as yet received no. deed, why, to that extent the present suit would have been adverse to Ellen, and in' that event appellee would not have been a competent witness against her; but nothing of that kind is sought by the bill as finally amended, and neither Ellen, as heir, nor any one identified in interest with her, is complaining of appellee’s testimony. There is no community of interest between appellants and Ellen, and her interests are not at all affected by the decree from which this appeal is prosecuted. The exception in favor of heirs, in the statute making parties in interest competent to testify1-, was inserted for the benefit of the heirs themselves, and not for the benefit of strangers who are in no manner identified in interest with them. We do not think this objection to the decree is well taken. It is also objected that the court erred in permitting Elizabeth Wright to testify to the terms of the contract with. McIntyre and Hammond, without having sufficiently accounted for the loss of the written contract. There are several answers to this objection, one of which is sufficient. Upon looking into the record itself, we find that the testimony of Mrs. Wright was taken before the master, and reported by him to the court, and that when her deposition was offered upon the hearing no specific objection was made to her testimony on the ground now suggested, and there was not, therefore, and could not have been, any ruling of the court upon it which can now be assigned for error. There was a general objection on the hearing to the competency of this witness, which we have just considered. There was also a general objection to her answers to interrogatories 6, 13,14, 22 and 23, and these were the only objections raised to her testimony. The answers to interrogatories 6, 13 and 14, the only ones having any bearing on the question in hand, were excluded by the court. Thus it will be seen there is no foundation in fact for 'the error now complained of. It is well settled that secondary evidence may always be received upon the trial of an issue, unless objected to on that ground, and the law does not suffer parties to sit by and permit evidence of this character to be received on the trial without objection, and afterwards, for the first time, take advantage of it in a court of review. To permit this would be highly unjust to the opposite party, for where the objection is made in the court below, it affords the opposite party an opportunity of meeting the objection by further testimony. It is further objected that there is a variance between the allegations and the proofs with respect to the parties from whom the purchase was made. It is claimed that while the bill charges that complainant bought it from McIntyre and Hammond, complainant swears that she had nothing to do with Hammond in the purchase of the land, and Hammond swears that when he conveyed to McIntyre, he understood he was selling his interest to him. This may all be so, and still the purchase, in contemplation of law, may have been made from them both. It clearly appears that complainant was informed, at the time of the purchase, that Hammond had an interest in the land, as well as McIntyre, and it also further appears that the latter was, at the time, the general agent of Hammond with respect to this and other lands owned between them, and McIntyre evidently acted on behalf of Hammond, as well as himself, in making the sale to her, and sent him his share of the purchase money paid by her long before the Gray judgment was obtained, and she being in the actual possession of the premises was notice to Gray, and all persons claiming under him, of her rights. But even if' the variance existed, which we do not concede, still, under the bill, as amended, for reasons already stated, the variance can not be regarded as material. If complainant were seeking to enforce the specific performance of the contract in question as against appellants, then the objection, if true in point of fact, would be well taken; but such is not the case. As against appellants, complainant by her bill, as amended, seeks to have a cloud removed from her title to the land in controversy, which the bill and proofs clearly show in equity belong to her, hence it is a matter of no concern to appellants whether the original contract was technically with McIntyre and Hammond, or whether McIntyre alone sold her the entire interest in the property, with the understanding that he would procure a deed from Hammond as soon as his interest was paid for, and under this arrangement she, through McIntyre, paid Hammond his share of the purchase money, and the latter, for the purpose of enabling McIntyre to convey to her, conveyed the premises to him. In either view, we do not consider the objection well taken. These are the only objections made by counsel which we deem of sufficient importance to consider. The merits of this case are so manifestly with appellee, the decree ought not to be disturbed on any mere technical ground which could not have prejudiced appellants. . Decree affirmed.