Fleming v. Mills

Mr. Justice Craig delivered-the opinion of the court: As has been seen, the property in question was willed to Eliza A. Mills for life, with power to sell for the support and maintenance of herself or family. On the hearing appellees introduced James M. Mills, Frederick N. Mills and Katherine L. Mills as witnesses, for the purpose of proving that the conveyance of the premises by Eliza A. Mills to Maria L. Fleming was not made for the support and maintenance of herself or family, and it was proven by the witnesses, or some of them, that the conveyance was not made'for the support and maintenance of Mrs. Mills or her family, but, on the other hand, it was made to pay a debt due from Frederick N. Mills to Hugh B. Fleming. The appellant objected to the testimony of these witnesses, and claims that under section 2 of chapter 51 of our statutes they had no right to testify in the case. That section is as follows: “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 bis own behalf, by virtue of the foregoing section, when any adverse party sues or defends as * * * executor, administrator, heir, legatee or devisee of any deceased person, * * * unless when called as a witness by such adverse party so suing" or defending.” Appellant claims that he was sued and defends as heir-at-law of Maria L. Fleming", and under the statute the heirs of Royal A. B. Mills were precluded from testifying against him. When the situation of the parties in relation to the title to the property in question is fully understood it will be seen that the position of appellant cannot be maintained. Royal A. B. Mills owned the property when he died. He disposed of the property by will. The title of appellant to the property, whatever it may be, is derived from and rests upon the will. So, also, the complainant and the other heirs-at-law of Royal A. B. Mills claim and derive their title from the will. It is true that appellant claims as an heir of his mother, Mrs. Fleming; but the only title of Mrs. Fleming arose from a deed made to her by Eliza A. Mills, and Mrs. Mills’ power or authority to convey rests upon the provisions of the will of Royal A. B. Mills, and hence it is that appellant, the appellees and the other beirs-at-law of Mills all claim under the will of Mills. Appellant is therefore not defending as an heir, within the meaning of the statute, and hence his objection to the evidence was properly overruled. The question here involved is controlled by Pigg v. Carroll, 89 Ill. 205, and Mueller v. Rebhan, 94 id. 142. In the discussion of a similar question in the latter case it is said (p. 149): “In Pigg v. Carroll, 89 Ill. 205, it was held that in a proceeding for partition of land between heirs and for the adjustment of matters of advancements made to some, the husband of one of the parties was a competent witness in behalf of his wife. Although the parties claimed their respective rights and sued and were sued in respect to rights held by inheritance, yet the statute could have no application to such case. The statute in this regard was intended to protect the estates of deceased persons from the assaults of strangers, and relates to proceedings wherein the decision sought by the party so testif jnng would tend to reduce or impair the estate, and does not relate to the relative rights of heirs or devisees as to the distribution of an estate in proceedings by which the estate itself is in no event to be reduced or impaired.” There is no effort, here, to reduce or impair the estate of Mrs. Fleming, which the appellant claims to represent. That estate is not involved, in this proceeding. The es-. tate here involved is that of Royal A. B. Mills, and that alone, and the question' involved is whether the property in question passed by the deed of Mrs. Mills to Mrs. Fleming, or whether, upon the death of Mrs. Mills, the property passed to the heirs of Mills, as provided in his will. If the property involved was not conveyed by Mrs. Mills for the support or maintenance of herself or family, that fact appellees had a right to prove by complainant in the bill and the other heirs-at-law of Royal A. B. Mills. In regard to the validity of the conveyance from Eliza A. Mills to Maria L. Fleming but little need be said. By the terms of the will of Royal A. B. Mills a life estate was conferred upon Eliza A. Mills, with power of sale for the support and maintenance of herself or family. She was clothed with the power of sale for the purpose named, but for no other purpose whatever. The testator, who conferred the power, had the right to impose such lawful checks or conditions upon the exercise of the power as he might deem proper, and no sale could be made without a strict compliance with the terms upon which a sale was authorized. Here appellant introduced no evidence to show that the deed was made for the purpose of raising money for the support of Mrs. Mills or her family, but, on the other hand, appellees established by the evidence that the sale was made for the purpose of paying a debt due from Frederick N. Mills to Hugh B. Fleming. As Mrs. Mills had no authority to convey for the purpose for which the deed was made, the deed may be regarded as a fraud on the devisees of the remainder in fee, as held in Griffin v. Griffin, 141 Ill. 378. If it had become necessary to use the property in question for the support and maintenance of the widow or her family, and she had sold and conveyed the property to raise money for that purpose, the sale might be sustained; but she had no authority to convey the property to pay a debt which one of her children bad incurred in speculation, and the sale for that purpose cannot be sustained. But while the conveyance from Mrs. Mills to Maria L. Fleming must ultimately be set aside, there is one insurmountable difficulty in the way of sustaining the present bill and granting the relief given by the decree. It appears that on the first day of May, 1894, Frederick N. Mills, Jennie M. Mills and Katherine L. Mills leased the premises in controversy of Hugh 2ST. Fleming for the term of one year, for a certain rent specified in the lease. They occupied the premises under the lease and paid the rent. A day or two before the lease expired the lessees permitted the complainant in the bill to enter into the possession of the property. Having obtained possession from appellant’s tenants, he filed this bill for partition and to set aside the deed under which appellant claims. Having obtained possession by collusion with appellant’s tenants, can he, without first surrendering that possession to appellant, maintain a bill to impeach appellant’s title? It is a well settled rule of law that a tenant cannot dispute the title of his landlord. He must restore the possession to the landlord before he can assail his title. If he disclaims the title of his landlord and.claims the premises adversely for himself or another, his posses-, sion from that moment becomes tortious. This principle is strictly applicable to all who succeed to the possession from or through the tenant. They occupy the same position and are held to the same responsibility. (Fusselman v. Worthington, 14 Ill. 135.) In Carter v. Marshall, 72 Ill. 609, it was held that where a party in possession of premises accepts a lease and occupies under it he is es-topped to deny his landlord’s title until the parties are placed in original positions; and it makes no difference that the tenant may have been in possession as the tenant of a former landlord,—he is precluded from denying the title of either. It was also said: “Ho dispute as to the title will be tolerated until the parties are placed in their original position.” In the same case the rule is also laid down that there may be one exception to the general rule that a tenant cannot dispute the title of his landlord, and that is where the tenant has been induced by fraud, artifice or mistake to accept a lease. Here nothing of the kind is pretended, but so far as appears the lease was entered into by the parties without fraud or mistake, and the lessees were bound to surrender the possession of the property to the lessor before they could assail his title, and the complainant in the bill, having obtained the possession from the lessees, stands in no better position. After he and they have delivered up the possession of the property to the appellant, then, and not before, they will be at liberty to assail his title. Doty v. Burdick, 83 Ill. 473. For the error indicated the decree of the circuit court will be reversed and the cause will be remanded. Reversed and remanded.