Ackman v. Potter

Mr. Justice Carter delivered the opinion of the court: The contention of appellant that Mrs. Davenport was not a competent witness will be first considered. It is argued that as she was a co-defendant, under the common law she was not a competent witness against the appellant. The common law rule has been changed by statute. (Hurd’s Stat. 1908, chap. 51, sec. 1, p. 1058.) Interest of a party, as a general rule, no longer disqualifies but only goes to his credibility as a witness, hence the common law authorities cited by appellant are not in point. Moreover, it has never been the rule in this State that in chancery a witness was necessarily incompetent because a party to the record. This court in Dyer v. Martin, 4 Scam. 146, in discussing the competency of a witness in chancery, stated (p. 150) : “Here the inquiry is not so much whether the name of the witness appears upon the record, as whether he is, in fact, swearing to promote his own interest. * * * Nor is it a fatal objection that he lias an interest in the event of the suit, but his interest must be against the party whose interests are sought to be prejudiced by his testimony.” Again, in Smith v. West, 103 Ill. 332, we held that under the practice in chancery a defendant might always testify for a co-defendant if his evidence did not necessarily involve his own interest. To the same effect is White v. Ross, 147 Ill. 427. It is further suggested by counsel for appellant that this witness was incompetent under section 2 of our chapter on evidence, as she was testifying against the interest of appellant, who was defending the suit as an heir. If the deed were sustained Mrs. Davenport would inherit as half-sister of the grantee, whereas if the deed is set aside her only interest would depend upon the remote contingency that her mother might will the property to her or die without a will, without having disposed of the property in question. To render a witness incompetent he must, in general, have a legal interest in the event of the suit, and such interest must be certain, direct and immediate, otherwise his interest goes to his credibility and not to his competency. (Illinois Mutual Fire Ins. Co. v. Marseilles Manf. Co. 1 Gilm. 236; Curtenius v. Wheeler, 5 id. 462.) A witness is not rendered incompetent by reason of the existence of an inchoate right of dower which depends upon the contingency that he survive his wife. Pain v. Farson, 179 Ill. 185. Appellant further suggests that Mrs. Davenport was not a competent witness, as, having been defaulted, costs might be charged against her. This contention is without force. If appellant should win, none of the defendants would be charged with costs; if appellees should win, costs might be charged against the witness. She was therefore, so far as the cost question is concerned, testifying against her own interest. Where three persons held certain lands in common under a contract of purchase, the legal title to the lands being conveyed to two of them and one of the latter subsequently dying, upon bill filed by the third against the heirs of the deceased part owner and the survivor to compel a conveyance of the proper share of the land, the surviving defendant permitted the bill to be taken pro confesso against himself, thereby admitting that he should convey to the other survivor a portion of the land standing in his name, and it was held that said surviving defendant had no such interest in the litigation between the complainant and the heirs of the deceased as would render him incompetent to testify in behalf of complainant against the heirs. (Rann v. Rann, 95 Ill. 433.) We think the trial court properly admitted this testimony. The chief contention of appellant is that the deed was delivered. On the question of delivery the intention of the grantor is the controlling element. (Creighton v. Roe, 218. Ill. 619.) If the testimony of Mrs. Davenport is worthy of credence, there was never any intention on the part of the grantors that the deed should be delivered until after the mother’s death. A deed must take effect upon execution and delivery or not at.all. A deed of land which is not to take effect until the death of the grantor is void, as being an attempt to malee a testamentary disposition of property without complying with the statute on wills. (Benner v. Bailey, 234 Ill. 79,) The reservation in a deed of a life interest in and the use and control of the premises does not render the deed testamentary in character or prevent the title in remainder vesting at once, if there has been an actual delivery of the deed. (White v. Willard, 232 Ill. 464.) The recording of a deed is prima facie evidence of its delivery, (Valter v. Blavka, 195 Ill. 610; Blake v. Ogden, 223 id. 204;) but the fact of recording does not, of itself, establish the delivery of the instrument. (Brown v. Brown, 167 Ill. 631.) It is but prima facie evidence and may be rebutted. The law makes stronger presumptions in favor of the delivery of a deed in the case of voluntary settlements than in an ordinary case of bargain and sale, (Creighton v. Roe, supra,) but where the grantees are of age, the presumption of delivery in their favor does not obtain to the extent it would if they were minors. 1 (Abrams v. Beale, 224 Ill. 496; Wilenou v. Handlon, 207 id. 104.) We are of the opinion that the facts in this case tending to show that the grantors did not intend to deliver the deed at the time it was filed for record are stronger than they were in Wilenou v. Handlon, supra, and in that case this court held that there had been no delivery. Appellant further contends that the fact that the grantor and her husband knew the deed was recorded and never attempted to have the property re-conveyed by the daughter shows that although the deed was not originally delivered it was ratified by them thereafter, and that on the authority of Phelps v. Pratt, 225 Ill. 85, the delivery of the deed was made good by a subsequent assent and ratification, even if originally invalid for want of intention to deliver. From the evidence in the record it is clear that the grantors, as well as the grantee, understood that the deed was not to take effect in any way, even though it had been recorded, until the death of Mrs. Ackman. On the facts presented here there is no basis for appellant’s contention that equity ought not to set aside this deed because of the gross laches of the grantors in not attempting to have it done at an earlier date. The authorities cited on this question are not in point. The grantors have always remained in possession of the property, paid the taxes and managed it as if it were their own. No one has been misled to his injury by the failure of the appellees to begin these proceedings at an earlier date. Appellant contends that the testimony of Mrs. Davenport is inconsistent within itself and therefore unworthy of belief, and that without her testimony there was no evidence in the record which justified the trial court in entering the decree. The weight of her testimony, as of all the testimony in the case, was for the trial court. This court will not reverse the finding of the 'chancellor unless it is apparent error has been committed. (Biggerstaff v. Biggerstaff, 180 Ill. 407; Dowie v. Driscoll, 203 id. 480; Farrenkoph v. Holm, 237 id. 94; Amos v. American Trust and Savings Bank, 221 id. 100.) The chancellor saw and heard this witness testify, and was in much better position to judge whether her testimony was worthy of belief than we are from a perusal of the record. We cannot say that it did not justify him in setting aside the deed. The decree of the circuit court will be affirmed. Decree affirmed.