Ferbrache v. Ferbrache

Mr. Chief Justice Sheldon delivered the opinion of the Court: Before the death of Elizabeth Ferbrache, Peter A. Ferbrache caused her deposition to be taken in support of his bill. We do not regard this deposition, so far as it respects facts which occurred in the lifetime of Daniel D. Ferbrache, as competent testimony against his heirs. The provision of the statute is, that no party to any civil action, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, when any adverse party sues or defends as heir of any deceased person, unless called by such adverse party, except in certain specified cases, the only one of which affecting this case is, that such party ór interested person may testify to facts occurring after the death of such deceased person whose heir so sues or defends. (Rev. Stat. 1874, p. 488, see. 2.) Elizabeth Ferbrache was directly interested in the event of the suit, by reason of her warranty deed of the land to Peter A. Ferbrache. If he succeeds in this suit, her covenants of warranty are satisfied. If he does not succeed, she is liable upon such covenants,—hence her direct interest in the event of the suit, and the incompetency of her testimony against the plaintiffs in error. Plain v. Roth, 107 Ill. 589. We perceive no force in the position taken that plaintiffs in error are not brought within the provision of the statute, simply by the fact that their title came to them by descent from their father, as he took by purchase, and that if any title descended to them it was a title by purchase. It matters not in what mode the title of the ancestor came to him. The undoubted title to the land, which once was in Daniel D. Ferbrache, is claimed to have been afterward parted with by him. Plaintiffs in error deny that the title ever was so parted with, and insist that the land descended to them from said Daniel D., and in the capacity of heirs to him they claim the land and defend the suit, and so come precisely within this statute provision. The assertion that Elizabeth Ferbrache had no legal interest in the question which one of her two warranty deeds to Daniel D. and Peter A., respectively, should prevail against the other, because she was equally liable on the covenants of each of them, is obviously untrue. The covenants in her deed to Daniel D. clearly would not extend to a consequence of any after act of his, and embrace the case of any future defect of title in him, caused from a subsequent conveyance of the land made by himself. Peter A. Ferbrache being a party to the suit, his testimony is alike incompetent, under the statute. There remains, then, in support of the allegation of the bill of a rescission of the sale to Daniel D. Ferbrache, but the testimony of the two daughters of Daniel D.,—Elizabeth Schenck and Judith Joh, and their husbands, John Schenck and David Joh, as to declarations made by Daniel D. His declarations, testified to by these witnesses, may be summarized about as follows : Elizabeth N. Schenck: “He (Daniel D.) said he had given it (the land) up to keep peace, .and that mother was to keep it.” John Schenck: “He said he gave it up on condition that she (mother) would hold it while she lived. ” Judith Joh: “He told me he had given it up to her (mother) on her promise never to sell it.” David Joh: “He told us he had given it up with the understanding she should keep it. ” There are some corroborating facts, as, that Daniel D. left the land, leaving his mother upon it, and went on a farm at Lawn Eidge, and subsequently paid no taxes on the land, nor, so far as appears, exercised any act of ownership over it; that during his lifetime (nine or ten years) he never put his deed upon record, and several years afterward, when Mrs. Ferbrache agreed to deed ten acres of the land to Peter A. Ferbrache, Daniel D. got up a remonstrance, with the other heirs, to dissuade and prevent her from deeding it. On this occasion he did not claim the land himself, but complained that it was contrary to the arrangement he had made with his mother. And Mrs. Ferbrache made improvements upon the land to the amount of some $460. There is in the case the testimony of Solomon Ferbrache, who was living in the family at the time of Daniel D. leaving the place and going to Lawn Eidge, that Daniel D. said on that occasion “he would move up to his farm on Lawn Eidge, and let his mother have the home place her lifetime; this was the substance of the agreement between them, to the best of my recollection. ” This witness appears at that time to have been but about fourteen years of age, and there may be other circumstances which detract from his credibility. The corroborating facts do not j)oint necessarily, to a rescission of the sale which had been made by Daniel D. to his mother, but would agree very well with the theory that he had given up the place to his mother for her life. We are of opinion that the evidence comes short of sustaining the allegations of the bill. It is of a loose and vague character, and lacks in definiteness as to what was the interest ' surrendered,—whether a voluntary gift, or not, and what were the terms. Whatever may have been the arrangement with the mother, shown by the evidence, it appears to have been attended with conditions which would make it incompatible with the deed which was made to Peter A. Ferbrache. The bill can be viewed in no more favorable light than as essentially one to enforce an oral contract for the conveyance of land. By the Statute of Frauds all such contracts must be in writing. To take a case out of- the statute on the ground of part performance of the contract, it is indispensable that the contract shall be established by competent proofs to be clear, definite and unequivocal in all its terms, (Worth v. Worth, 84 Ill. 442, Bohanan v. Bohanan, 96 id. 591, 2 Story’s Eq. Jur. sec. 764,) that possession shall have been taken of the land under the contract, and payment of the purchase money made. It does not appear here that there was any consideration paid, or to be paid, and there is not that 'clearness and satisfactoriness of proof which is required in order for the enforcement of a verbal contract in respect to land. The attempt to make title in Mrs. Ferbrache under the Statute of Limitations, by seven years’ possession and payment of taxes, manifestly fails. She was in the possession of the premises under Daniel D. Ferbrache, as we find, and was left by him in such possession under him. While holding such possession under him she could acquire no adverse title against him by reason of her actual possession and payment of taxes. Our conclusion is, that the court below erred in its "finding in favor of Peter A. Ferbrache and decree of relief to him, and also in refusing the relief prayed for in the cross-bill of plaintiffs in error, and in dismissing the same. Lloyd v. Karnes, 45 Ill. 62. The decree in the case of Peter A. Ferbrache against the heirs of Daniel D. Ferbrache will be reversed, and the cause remanded for further proceedings in conformity with this opinion. Decree reversed. Mr. Justice Scott was not present at the consideration of this case, • and took no part in its decision.