188 Ill. 165 | Ill. | 1900
delivered the opinion of the court:
First — Are the oral ‘statements and written declarations made by Frederic Bartlett, mentioned in the statement of facts which precedes this opinion, competent evidence against the complainants, as tending to show that Isabella J. Bartlett was the bona fide owner of said homestead at the time of her death? We are of the opinion they are, and that they established, in connection with the other facts proven in this case, an existing indebtedness from Frederic Bartlett to Isabella J. Bartlett, and an intention that the same should be paid. They were made some months before the indebtedness to either the insurance company or the bank was contracted and without reference thereto, and could not, therefore, have been made for the purpose of defrauding the complainants or either of them. The payment of such indebtedness was a g'ood and valuable consideration for the transfer of said homestead from Frederic Bartlett to Isabella J. Bartlett, from whom Isabella H. takes title.
The ground upon which such evidence is received is thus stated by Mr. Greenleaf: “Declarations of the other class, of which we are now to speak, are secondary evidence, and are received only in consequence of the death of the person making them. This class embraces not only entries in books, but all other declarations or statements of facts, whether verbal or in writing, and whether they were made at the time of the fact declared or at a subsequent day. But to render them admissible it must appear that the declarant is deceased, that he possessed competent knowledge of the facts or that it was his duty to know them, and that the declarations were at variance with his interest. When these circumstances concur, the evidence is received, leaving its weight and value to be determined by other considerations. ” 1 Greenleaf on Evidence, sec. 147.
In the case of County of Mahaska v. Ingalls, 16 Iowa, 81, Judge Dillon, after an exhaustive review of the English and American authorities, reaches the conclusion that verbal declarations may be received in an action between third parties when accompanied by the following prerequisites: (1) The declarant must be dead; (2) the declaration must have been against the pecuniary interest of the declarant at the time it was made; (3) the declaration must be of a fact in relation to a matter concerning which the declarant was immediately and personally cognizable; and (4) the court should be satisfied that the declarant had no probable motive to falsify the fact declared.
In VanBuskirk v. VanBuskirk, 148 Ill. 9, on page 20, it is said: “We think, however, that there is a clear distinction between proof of the declarations of the grantee to the effect that he holds the title for another or has agreed to convey to another, and his declarations or admissions to the effect that another person’s money was paid for the land. Declarations of the latter class are entitled to more weight than those of the former class, especially when they are corroborated by circumstances and attended by proof of some previous arrangement under which the money was advanced.”
In Crane v. Wright, 46 Ill. 107, which was an action by the wife to recover back money paid on a contract for the purchase of land which had been rescinded, we held that the declaration of the deceased husband that the money paid on the purchase belonged to his wife and that he wished the contract to inure to her benefit, was admissible in evidence on her behalf.
We see no reason, in principle, why the admission of the husband acknowledging an indebtedness to the wife, when all the other prerequisites concur, should not be received against the creditors of the husband. Like all such declarations, they are not conclusive, but may be proved to be untrue either by positive or circumstantial evidence.
Second — It appears from the evidence that Frederic Bartlett received the proceeds of the sale of the first homestead to Warner and the funds derived from the insurance policy; that in August, 1893, he agreed to re-pay to Isabella J. Bartlett the amount thereof, for which he gave her his promissory note; that on January 16, 1896, he conveyed to her the homestead then occupied by them, which on the 5th day of August, 1893, he had acknowledged in equity belonged to her; that it did not exceed in value the amount of said indebtedness, and that the title thereto was conveyed to her before the complainants recovered their judgments. Frederic Bartlett had the right to prefer his wife to his other creditors, provided the preference was based upon a-valuable consideration and was made in good faith.
Third — Appellants contend that Isabella J. Bartlett was estopped from asserting title to said homestead as against their executions because she did not at once put the declaration of trust on record when she obtained it, in 1893, and because the deeds conveying the title to her were not recorded for a period of about thirty days after their execution. The proof fails to show that Isabella J. Bartlett in any way misled the complainants, or that said declaration of trust and deeds were withheld from record by reason of an agreement made by her with her husband. The complainants’ equities are not superior to those of the wife. She succeeded in securing the title to the property, of which she was justly and equitably the owner, before they reduced their claims to judgments against her husband. She first reduced her equity to a legal basis, and, as was said in Earl v. Earl, 186 Ill. 370, we cannot assent to the view her right and title to the homestead property should be subordinated to said judgments.
The substantial truth of the statements made by Frederic Bartlett are not affected by some apparent discrepancies which appear in the evidence. From an examination of this record we fully concur in the opinion of the Appellate Court “that the court below was fully warranted by the proofs in finding that the conveyance of real estate from Frederic to Isabella J. Bartlett was made in good faith and for a valuable consideration, and that the title to the same was vested in the latter in her lifetime.”
As the complainants succeeded only in part, we do not think the court erred in requiring them to pay one-half of the costs.
Appellee, Isabella H. Bartlett, having failed to assign cross-errors in this court, we are not called upon to review that part of the decree and judgment which affects only the personal property.
The judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.
