| Ill. | Nov 17, 1884
delivered the opinion of- the Court:
It is specifically alleged in the bill that all who are complainants in the present suit were made defendants to the bill to foreclose, and were properly summoned, as such, and before the court when the decree of foreclosure was rendered. They then had an opportunity to set up the defences of usury and payment, and unless they were prevented from doing so by the complainant in that suit, (Robert Hopkins,) they are now estopped from urging such grounds for relief. (Thomson v. Morris et al. 57 Ill. 333" date_filed="1870-09-15" court="Ill." case_name="Thomson v. Morris">57 Ill. 333; Clubb et al. v. Wise, 64 id. 157.) But the bill alleges that “said Hopkins, conspiring with said John A. Knight to cheat and defraud complainants, represented that, inasmuch as said Dyer and wife were both dead, it would be better and cheaper for complainants, and would give a better title to said land, for him to file a bill in the Kendall circuit court to foreclose the said mortgage, and that on a decree being rendered for foreclosure and sale, said land could be sold at master’s sale, and thereby a perfect title could be obtained, and said John A. Knight could bid in said tract, and convey to each of complainants his or her respective interest in the same; that the complainants, having perfect confidence in the honesty and integrity of Hopkins and Knight, and believing said statements, assented to his proposals, ” etc.; and further, that they, “relying on the agreement aforesaid, with said Hopkins, and his honesty and good faith in the-' premises, etc., did not appear and put in their several answers to the bill, ” etc. It became, therefore, necessary, upon'the trial, to satisfactorily prove these allegations. If they were not proved, the excuse for not putting in answers to the bill to foreclose has failed, and the complainants are bound by the decree of foreclosure as to all.matters of defence occurring anterior to the time at which it was rendered.
We have been unable to find sufficient competent evidence to sustain these allegations. John A. Knight, who, as we shall hereafter show, was incompetent to prove any agreement with or declarations of Robert Hopkins, is the only person whose evidence pretends to detail an agreement with said Hopkins in regard to the foreclosure and sale thereunder, but it shows no agreement with .the complainants. It shows, on the contrary, distinctly, if anything, an agreement between Hopkins and the witness alone, whereby there was to be a foreclosure and sale thereunder, to enable the witness to cut off and defeat all rights of the complainants in the mortgaged property. On his first examination he said, as his evidence is abstracted by the complainants’ counsel: “After these payments were made, the way the mortgage came to be foreclosed, was this: My sister-in-law, Emily Dyer, was up here. I told the doctor [i. e., Hopkins] so, and asked him to come down. He did so, and she wanted to know what I would give her to sign off her right in the place. I told her, $100, and no more. At the train, when she went away, I offered her $100 if she would sign the release to that place. She would not take it, but offered to take $800. I told her the doctor proposed to administer on that estate of C. J. Dyer. I saw the doctor, and had a talk with him. He said I could sell the place at a mortgage sale, and it would not cost as much as it would to administer on the estate. We sat down on a pile of lumber near the depot, and talked this matter over. I agreed to have it sold at a mortgage sale,—that is, sell the place in controversy where I live. He said it would not cost over $20 to do it, and that he would get me a good title. He said she didn’t have anything or any interest in the place; that she had never done anything to have any interest there; that my wife, Caroline Knight, had always taken care of the old folks. This was before filing the bill. We talked about the amount due, and he said he had to go a good deal by memory, and he said he would sell it and give me a good title. We didn’t make any defence, for it was for my especial benefit. This was the day that Emily Dyer went home, and the foreclosure was to get the title of the place in me,—that was the reason the bill was filed. Emily Dyer is a sister of my wife. She and her husband were living in Logan county. There was talk of taking out letters of administration on the estate. The doctor said it would be cheaper to foreclose the mortgage, and he would sell it at a mortgage sale, so I would get a deed for it and shut her out. ” On a subsequent examination the same person testified, on cross-examination: “At the time the summons was served, my wife knew all about it, and that the mortgage was paid, and I told her that she need not look after it, but that I would. I told her that it was all right. I had no idea that the mortgage was being foreclosed for the doctor to get any money out of me. Neither had my wife. If we had thought of such a thing we would have put in a defence to the mortgage. The reason we did not put in' a defence to the mortgage, was because of the arrangement with Dr. Hopkins.”
But when Knight was first examined, he was the owner in fee, subject to the mortgage, of an undivided half of the mortgaged property. When he was next examined he had conveyed, by quitclaim, to Meredith, and Meredith, by the same kind of conveyance, had conveyed this undivided half to Knight’s wife. It is shown, however, that this property constituted, and was occupied by Knight and wife as, a homestead, before the conveyance and since, and up to the time of giving his evidence. He, then, must have had, when last examined, an estate of homestead in the property, or at least in an undivided interest therein. The statute allowing parties in interest to testify, makes the exception that “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 his own behalf, by virtue of the foregoing section, when any adverse person sues or defends, * * * as the executor * * * or legatee or devisee of any deceased person.” (Rev. Stat. 1874, p. 488, sec. 2.) Indeed, the conveyances from Knight to Meredith, and from Meredith to Knight’s wife, seem, and were so found by the court, purely colorable, and were, doubtless, made as releases of his interest merely for the purpose of rendering him competent as a witness. If this was the purpose of their execution, they could not have the intended effect, for it is provided by the seventh section of the statute relating to evidence and depositions, (Bev. Stat. 1874, p. 490,) that “in any civil action, suit or proceeding, no person who would, if a party thereto, be incompetent to testify therein under the provisions of section 2 or section 3, shall become competent by reason of any assignment or release of his claim made for the purpose of allowing such person to testify.” In either view, however, Knight was not competent to testify to transactions occurring with and declarations of Hopkins in his lifetime. The opposite parties defend as executors and legatees of a deceased person, and he is himself directly interested in the event of the suit, and testifies in favor of that interest. McCann v. Atherton et al. 106 Ill. 31" date_filed="1883-03-29" court="Ill." case_name="McCann v. Atherton">106 Ill. 31; Plain v. Roth et al. 107 id. 588.
Divesting the case of the evidence of John A. Knight, the only evidence that we can find in the abstract upon the question under consideration is as follows: George Ernst testified, speaking of the foreclosure and sale: “I had a conversation with Dr. Hopkins about the matter. I was crossing the river one morning with him. I said, ‘Doctor, you are not going to sell that place of John’s, are you?’ He said, ‘I have got to, in order to get him a good title.’” C. J. Dyer, a nephew of the deceased C. J. Dyer, speaking of the foreclosure and sale, testified: “I met Hopkins, and asked him if he was going to sell them out, and what for. He said the sale would get Knight a better title, on account of Franklin E. or Emily J. Dyer,—that the sale would help John’s title.”
If, anywhere in this record, there is evidence of a contract between Hopkins and these complainants in regard to this foreclosure and sale, or of an act done or word said to them by him to induce them to not appear and defend against the foreclosure, we have been unable to find it. Conceding, for argument’s sake, only, that as to Knight there is such proof, Knight is not complainant here, and he therefore neither seeks nor is entitled to affirmative relief under the pleadings. Nothing is shown to have been done or said, even by him, to induce the complainants not to appear and defend against the foreclosure suit; and it can not be claimed he was acting as their agent, for the evidence quite as clearly shows, as it shows anything, that he was intending by the sale to cut off their rights and obtain for himself the entire title. The complainants have had their day in court, and having neglected to interpose their defence against the mortgage then, they can not now be allowed to urge the same matters as grounds for affirmative relief.
We are unable to say the decree on the cross-bill is not authorized by the evidence; but whether so, or not, if we are right in what we have said as to the relief sought under the original and supplemental and amended bills, these complainants are not prejudiced thereby. That decree takes nothing from them to which they would otherwise be entitled.
The decree is affirmed.
Decree affirmed.
Subsequently, upon an application for a rehearing, the following additional opinion was filed:
Per Curiam : We have considered the several reasons assigned for a rehearing in the petition, and still remain of the opinion heretofore announced.
If it shall be conceded to be proved, as is in the petition suggested, that John A. Knight, with the knowledge and approval of his wife, Catherine, and as her agent, as well as for himself, entered into a contract with Hopkins, whereby to have the title to the property in controversy so Vested in himself as to cut off the title of the heirs at law of Dyer, it. may be answered, first, that is not the case made by the bill, and so a decree, as prayed by the bill, can not be rendered thereon; and secondly, such an agreement is iniquitous and fraudulent as to the heirs at law of Dyer, and so is insusceptible of enforcement in a court of equity. If, also, we shall concede that as to Carrie E. Dyer and the other heirs at law of Dyer, Knight was, as is in the petition contended, a competent witness, it is sufficient to answer, as is shown in the foregoing opinion, that his evidence does not prove, as to them, the allegations of the bill. But the rule of chancery practice whereby parties were allowed to testify, was limited to cases where their evidence could not be used in their own favor. (Bragg v. Geddes, 93 Ill. 39" date_filed="1879-09-15" court="Ill." case_name="Bragg v. Geddes">93 Ill. 39.) Here, the interests of the parties, on the case made by the bill, are so interwoven and inseparable that it is difficult to conceive how effect could be given to the evidence tending to prove the alleged agreement, with reference to some, and not to all, claiming under that agreement. Inasmuch as the claim of estate of homestead of John A. Knight is coextensive with the claim of estate in his wife, it is impossible that his evidence in favor of his wife shall not equally be evidence in his own favor. His interest, if it be admitted that he has no other estate than that of homestead, still exists in the property to that extent; and it is not separate and independent from her estate, but, on the contrary, results from or grows out of it, so that if her estate fails, his must fail also. But if he has an interest or claim in the property separate and apart from this, that only increases his interest in the litigation, and renders it still more certain that he is incompetent.
The rehearing is denied.
Rehearing denied.