94 Ill. 433 | Ill. | 1880
delivered the opinion of the Court:
This was an action of ejectment, brought by Damon Hauser against Henrietta Mester, to recover possession of the premises described in the declaration. The only evidence offered by plaintiff of title in himself was a trust deed made by Carl Mester, since deceased, in which defendant, then his wife, joined in its execution for the purpose of releasing her homestead and dower, and by which trust deed the premises were conveyed to plaintiff to secure a note made payable to Charles A. W. Zimmerman for $300, with interest at 10 per cent per annum. The payee of the note has since died, and this suit purports to have been brought for the use of his executor, but that is a matter of no consequence. If a plaintiff recovers in an action of ejectment, it must be on the strength of his own title to the premises and not upon any equities another party may have in the subject of the litigation.
On the trial defendant offered to prove by her own testimony that' in the loan which her husband secured from Zimmerman, interest was reserved at the rate of 12 per cent per annum, which her husband agreed to pay, and that at the time of the making, of the note'fov $300 Zimmerman let him have but $294, the other six dollars being retained as the 2 per cent extra interest above the rate named in the note, and that interest was in fact paid on the note at the rate of 12 per cent per annum for the several years ending February, 1869, 1870, 1874, 1875 and 1876, by defendant, with money furnished by her husband, viz: $36 for each year named. The evidence offered was rejected by the court on objection made by plaintiff, and that decision, we think, was error.
If plaintiff can recover at all under the trust deed in evidence, it must be upon the same principle a mortgagee could recover the mortgaged premises, viz: as a mode of obtaining satisfaction of the indebtedness secured. Should it be made to appear the indebtedness secured was fully paid or in auy way barred or discharged, it is apprehended the right of entry "as for condition broken would also be barred. The evidence tendered, if admissible, was to show the debt secured by the trust deed was fully paid, at least all that could be legally collected. The objection is not so much to the evidence as to the competency of defendant to testify on her own behalf, and the reason assigned is, that witness is defendant in the action and is interested therein, and that plaintiff sues as trustee “ of the heirs, devisees and legatees” of the payee of the note secured by the trust deed and for the “use of the executor.” The objection can not be maintained. Plaintiff sues in his own right as holding the legal title to the property, and it is not a matter that can be considered in this action who may be equitably interested in the estate. There is evidence the payee of the note secured is dead, but there is not a particle of evidence he left “any heir, devisee or legatee.” It will be observed plaintiff sues for the “use of the executor,” and that is not within any clause of the statute that renders the adverse party incompetent to testify in her own behalf on account of his interest in the subject matter of the suit. The exceptions are where the “ adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard, lunatic or distracted per,son, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as the guardian or trustee of any such heir, legatee or devisee.” It is not claimed plaintiff sues in any capacity mentioned in the first or second clauses of the section of the statute cited, nor cam it be said he sues as guardian or trustee of any “heir, legatee or devisee,” for there is no evidence the deceased payee of the note, if the action was on it, left any “heir, legatee or devisee.” There is, therefore, no reason why defendant was not a competent witness in her own behalf as to matters about which she offered to testify, notwithstanding her interest in the subject of the litigation.
Whether defendant made a tender of the balance she alleges was due on the note, is a question of fact that must be left to the finding of the court below. At most it is a matter that affects the costs and not the merits of the action.
On account of the error of the court in excluding the testimony offered by defendant, the judgment will be reversed and the cause remanded.
Judgment reversed.