| Ill. | Feb 20, 1908
Lead Opinion
delivered the opinion of the court:
It is first contended that James A. Willhite was an incompetent witness as he was a party to the suit, and William B. Berry was defending by his conservator. Had that question been raised in the court below the contention of the plaintiffs in error would doubtless have been sustained. It was not there raised. James A. Willhite was called by the complainants and recalled by the defendants and fully examined by both parties without objection as to his competency as a witness relative to the heirs of Henry H. Willhite, deceased, the homestead rights of Henry H. Willhite and Martha J. Willhite in said premises, and the manner of the release of the Harrington'mortgage on the said premises. There was no controversy about those facts. The defendant Berry was represented by his conservator, who was represented by an attorney, and the competency of James A. Willhite as a witness not having been raised in the trial court cannot be raised in this court for the first time. (Doty v. Doty, 159 Ill. 46" date_filed="1895-11-25" court="Ill." case_name="Doty v. Doty">159 Ill. 46; Millard v. Millard, 221 id. 86.) In the Millard case, on page 91, it was said: “If an objection had been interposed on the ground that the witness was not competent to testify to certain facts, it may be that the same facts could have been proved by other testimony, and the question of the competency of a witness cannot he raised for the first time in an appellate tribunal.”
It is next contended that the deed from George P. Harrington to Martha J. and Jacob Willhite was good color of title. That deed was made to release the mortgage which was on the land at the time of the death of Henry H. Willhite, which mortgage was paid by the widow from the funds of her deceased husband’s estate, and the deed amounted only to a release of that mortgage. Lightcap v. Bradley, 186 Ill. 510" date_filed="1900-10-19" court="Ill." case_name="Lightcap v. Bradley">186 Ill. 510.
It is finally contended that the title of the defendants in error to said premises was barred by the Statute of Limitations at the time this suit was begun. The premises in question were of less value than $1000 and were the homestead of Henry H. Willhite at the time of his death, and such homestead estate continued in his widow after his death. The conveyance of the widow to John H. Willhite, though apparently a conveyance of the fee to said premises, was only a conveyance of her homestead right in the premises, which was a life estate therein, and a release of her dower right in the fourth of said premises which belonged to John H. Willhite in fee, and during the life of the widow the heirs of Henry H. Willhite could not, as owners of the fee, obtain possession of said premises from Martha J. Willhite or her immediate or remote grantees, hence the Statute of Limitations did not commence to run against them, as remainder-men, during the lifetime of Martha J. Willhitethe widow. She died January 16, 1903, and this suit was commenced in March, 1906, and was therefore commenced in ample time after her death to prevent the running of the Statute of Limitations. The trial court therefore properly held that William B. Berry was entitled to the undivided one-fourth part of said premises as the grantee of John H. Willhite, deceased, and that the defendants in error, as remainder-men, were seized in fee simple of the remaining three-fourths part of said premises. (Mettler v. Miller, 129 Ill. 630" date_filed="1889-10-31" court="Ill." case_name="Mettler v. Miller">129 Ill. 630; Turner v. Hause, 199 id. 464; Henderson v. Kibbie, 211 id. 556; Weigel v. Green, 218 id. 227; Schroeder v. Bozarth, 224 id. 310.) The fact that the parties in possession of said premises holding under the conveyance from Martha J. Willhite to John H. Willhite may have made improvements on said premises or paid the taxes thereon, and did not have notice of the rights of the defendants in error in said premises as remainder-men, did not have the effect to defeat the rights of the complainants in said premises. Mettler v. Miller, supra; Weigel v. Green, supra.
Finding no reversible error in this record the decree of the circuit court will be affirmed. n ¿r ,
n ¿r , Decree affirmed.
Dissenting Opinion
dissenting:
James A. Willhite was a party to the suit interested adversely to plaintiff in error Berry, who was a distracted person, defending by a guardian ad litem and his conservator. James A. Willhite was an interested and incompetent witness. The decree rests upon his testimony alone, for his was the only testimony showing any interest of complainants in the property in controversy. The burden of proving ownership rested on complainants, and they introduced no competent evidence. A guardian ad litem cannot waive any of the rights of the defendant whom he represents, and when incompetent and illegal evidence is introduced without objection by the guardian, the court is bound to notice and exclude such evidence. The objection cannot be waived by the guardian ad litem or by a natural or legal guardian. (Waugh v. Robbins, 33 Ill. 181" date_filed="1864-01-15" court="Ill." case_name="Waugh v. Robbins">33 Ill. 181; Cartwright v. Wise, 14 id. 417; Barnard v. Barnard, 119 id. 92; Turner v. Jenkins, 79 id. 228; Boyer v. Boyer, 89 id. 447; Rhoads v. Rhoads, 43 id. 239.) In Cartwright v. Wise, supra, the court said (p. 418) : “It is true, the guardian ad litem raised no objection to the competency of the witness. But this cannot prejudice the rights of the defendant, whom he represented. The guardian could waive none of his rights. They are committed to the protection of the court, whose duty it is to notice legitimate and substantial objections in such a case, whether raised by the guardian or not. He who prosecutes an infant or an idio.t must see to it that he makes out a proper case, and by competent proof, before he can expect a decision in his favor.”