Goelz v. Goelz (157 Ill. 33, 1895)

Mr. Justice Baker

delivered the opinion of the court:

In 1880 William Goelz, the appellee, was residing with his wife, Josephine Goelz, at Bowmanville, in Cook county, Illinois. He was a German by birth and a physician by profession, and had accumulated some property. He was at that time sixty-one years of age, aud his wife was several years older. They had three living children, —William Goelz, Jr., about thirty-three years old, Carl August Goelz, a few years younger, and a daughter, Dorothea F. Goelz, since intermarried with one August Gross-man. William Goelz, Jr., and Carl August Goelz, were married men, Louisa Goelz being the wife of the former and Anna Goelz the wife of the latter. William Goelz, Jr., had no property or money, and was working for a very small compensation and on commissions in the real estate office of B. P. & M. Weber, in Chicago.

The premises in controversy in this suit are ten acres of land in the town of Lake View, in Cook county. On the 12th day of February, 1880, said ten acres were sold at public vendue at the south main entrance door of the Criminal Court building in Chicago, by one Edmund Knauer, trustee, under a trust deed executed by John Krummenacher and wife to secure the payment of a note for $2000,_ and interest. William Goelz, Jr., had learned of the proposed sale some days prior to the date it was advertised to take place, and that the property could probably be bought for the amount of the debt, interest and expenses of sale, and informed both his father and his mother in regard thereto. He attended the sale, taking with him a certified check for §300, dated said 12th day of February, 1880, signed by Bernard F. Weber, and payable to “Edmund Knauer (trustee) or order.” He bid in the property for §2400 in the name of his mother, Josephine Goelz, and delivered to Knauer, the trustee, the check for §300, in part payment of the purchase money. The trustee thereupon made to Josephine Goelz a trustee’s deed for the land. The deed bears date February 12, 1880, was acknowledged April 28, 1880, and was filed for record on July 19, 1880. The residue of the purchase money was paid to the trustee by William Goelz, Jr., in March and April, 1880, he having obtained most of the money necessary for so doing by getting Bernard F. Weber to cash certain notes secured by mortgages, and known as the Deinzer note for §1090, the Zender note for §600, and the Beil note for §200. It seems that William Goelz, the father, was the owner of each and all of said last mentioned notes. It also satisfactorily appears that prior to the trustee’s sale William Goelz, Jr., had arranged with Weber to cash the notes in the event he bought the property.

About the time of the above transaction, or shortly thereafter, Josephine Goelz met with an accident by which a leg was broken. She afterwards suffered greatly from the rheumatism, and her lower limbs were paralyzed, and the latter five years of her life she was a confirmed invalid. She and her husband gradually became estranged from each other, until, finally, they were not even on speaking terms.

In 1884 appellee was told that his wife had executed a will, in which she had devised the land in question. Thereupon, on the 12th day of September, 1884, he exhibited the original bill filed herein, making his wife and his son William Goelz, Jr., parties defendant thereto. Josephine Goelz had not, in fact, made a will, but on the 26th day of July, 1884, she had executed and acknowledged a deed by which she conveyed the south half of the land to William Goelz, Jr., and had also executed and acknowledged a certain other deed, by which she conveyed the north half of the premises to Carl August Goelz. Both of said deeds were delivered and filed for record on said 26th day of July, 1884, and each deed states, on its face, that it was made for the consideration of one dollar and for other good and valuable considerations.

The substance of the original bill was, that complainant gave to William Goelz, Jr., $2400, and directed him to purchase the land in the name of the complainant; that said agent fraudulently took the'deed in the name of Josephine Goelz, and that complainant, as soon as he heard that the deed was in the name of Josephine, requested her to convey to him, which she refused to do. The prayer was, that a trust be declared for the use of the complainant, and that Josephine be decreed to convey to him. Jó'sephine Goelz and William Goelz, Jr., each filed answers and denied the allegations of the bill.

On October 23, 1885, William Goelz, Jr., made a quitclaim deed for the south half of the land to John Jacobs, a brother-in-law, and on December 28, 1885, John Jacobs and his wife made a quit-claim deed for the same property to Louisa Goelz, wife of William Goelz, Jr. Each of said deeds stated a nominal consideration of one dollar. Josephine Goelz died intestate on or about the 18th day of April, 1886.

On June 20,1887, the complainant filed a supplemental bill. Said bill made reference to the prior bill and answers, and replications to the latter; stated the execution of the two deeds of July 26, 1884, and of the deeds of October 23 and December 28, 1885, and alleged the death of Josephine Goelz. It charged that all of said conveyances were made without consideration, and in fraud of the complainant’s rights. It made William Goelz, Jr., Carl August Goelz, Dorothea P. Grossman, August Gross-man, and John Jacobs and his wife, defendants, and prayed for relief against them. Jacobs and his wife filed disclaimers. Dorothea F. Grossman and her husband made default. Carl August Goelz, William Goelz, Jr., and Louisa Goelz filed answers in denial of the averments and charges contained in the original and supplemental bills. Various amendments were afterwards made to both the supplemental bill and the answers, but it is not deemed necessary to here specify what they were. The cause was referred to a master in chancery, who took the depositions and proofs and reported them to the court, with his conclusions.

The decree of the Superior Court of Cook county, entered December 26, 1893, granted the relief prayed for by appellee in his bills of complaint, and decreed that the title to the ten acres of land was held in trust by Carl August Goelz and Louisa Goelz, and required them to convey to appellee, as being the equitable owner of the land.

Appellants claim that all of the testimony given by appellee, himself, as a witness, is incompetent, and should be disregarded. They base this claiir^ on section 2 of the chapter on “Evidence and Depositions,” which provides that no party to any civil action, suit or proceeding shall be allowed to testify therein in his own behalf, when any adverse party sues or defends as the executor, administrator, heir, legatee or devisee of any deceased person. This contention is met by appellee by the counter claim that objections to the competency of a witness or to testimony can not be made for the first time in this court, and that no objections were interposed before the master as to the competency of Dr. William Goelz as a witness, nor as to the competency of his testimony, and that no objections or exceptions to his testimony were filed in the court below.

Neither the claim of appellee nor that of appellants is well grounded. It is to be borne in mind that the question, here, does not go to mere matter of informality or irregularity, which might be cured in the trial court. The question before us concerns the legal competency of certain evidence, and the question arises, not in an action at law, but in a suit in equity.' In Swift v. Oastle, 23 Ill. 132, this court said: “The question presented upon the trial- before the chancellor, as well as in the appellate court, is, upon all the legitimate evidence in the cause, what decree should be rendered? The chancellor being the judge of both the law and evidence, the presumption is that in rendering his decree he will only regard that which is legal and pertinent. * * * It is the correct practice for the chancellor, after the evidence is heard, to regard no portion of it which is immaterial or illegal, and to decide the case alone on the legal evidence adduced. Such is believed to have been the uniform practice, which has been adopted from considerations of convenience, and is in no way calculated to hinder or delay the administration of justice, and no reason has been suggested, nor is any perceived, why it should be changed.” In Treleaven v. Dixon, 119 Ill. 548, it was said: “In chancery cases the whole record, including all the evidence offered, is before us, and we are required to assume that all the incompetent evidence was rejected and all the competent evidence was admitted and considered on the final hearing. If there is competent evidence in the record sufficient to sustain the decree, it' must be affirmed; if not, it must be reversed, — and this without regard to whether the chancellor may have been right or wrong in his views as to the competency of the evidence at the hearing.” And to the same effect are Stone v. Wood, 85 Ill. 603, Tunison v. Chamblin, 88 id. 378, Moore v. Tierney, 100 id. 207, Ritter v. Schenk, 101 id. 387, Smith v. Long, 106 id. 485, Gordon v. Reynolds, 114 id. 118, and numerous other cases.

It is plain, however, that appellants ask too much when they insist upon excluding from consideration the whole of the testimony given by appellee in his own behalf. Appellants are not defending as heirs, legatees or devisees of Josephine Goelz, deceased, but as immediate and remote grantees of said deceased. Consequently the case does not fall within section 2 of chapter 51 of the Revised Statutes. Appellee is a competent witness in the case, but, at the same time, much of his testimony is incompetent, and must be disregarded.

On grounds of public policy, and wholly independent of any question of interest or identity, neither husband nor wife could, at common law, testify to communications or conversations occurring between them during coverture; and this inability to testify continued, as to such communications and conversations, even after the marital relation was severed, either by divorce or by death. (1 Greenleaf on Evidence, secs. 254, 334, and following sections.) By section 5 of the act of 1867, (Laws of 1867, p. 184,) which was re-enacted in 1872 as section 5 of the act in regard to evidence and depositions, (Laws of 1871-72, p. 405,) this rule was relaxed, but only in respect to certain specified cases. In 1874 said section 5 was amended by the addition thereto of a proviso, to the effect “that nothing in this section contained shall be construed to authorize or permit any such husband or wife to testify to any admissions or conversations of