Sherman v. Bruce

37 Ill. 39

• Court: Illinois Supreme Court
• Decided: April 15, 1865
• Status: Published

Opinion

Mr. Chief Justice Walker

delivered the opinion of the court:

The only question which we propose to consider, is, whether William M. Bruce was a competent witness. It appears from his testimony, that defendant in error, being indebted to the witness, had executed to him a mortgage on the property in controversy, to secure its payment. Defendant in error was at the time residing on the farm of witness. After-wards, in the following year, William and defendant entered into an agreement, by which the latter, for the sum of two hundred and fifty dollars per annum, agreed to labor upon, and conduct the farm, and attend to the stock thereon, and which might afterwards be placed upon the farm, by his brother William. At the time this arrangement was entered into, William took possession of the mortgaged property and delivered it to defendant in error, to be kept as the agent of William. Afterwards, in March, 1863, the property in dispute was levied upon, and taken by plaintiff in error, by virtue of an execution against defendant in error, and other persons. And on the day of the levy, it was replevied by defendant in error. On the trial below, William M. Bruce, the mortgagee of the property in dispute, was admitted as a witness against the objections of plaintiff in error. The trial resulted in a verdict and judgment in favor of defendant in error.

The record shews, that the suit was instituted by defendant in error, as the agent of William M. Bruce, the mortgagee. The latter was, therefore, the real party in interest. A recovery by Ms agent, would be a recovery in effect by him. A recovery by defendant in error, would restore the possession to him, as his agent could not deny his title ; and the possession of this agent would -be his. It then follows, that he was as hilly interested in the event of the suit as if he had .been the plaintiff on the record. He was called to testify in favor of his own interest, and was therefore incompetent, and should have been excluded. In admitting him to testify, the court below erred. There being no other evidence for plaintiff below, when this is excluded, there is nothing left to support the judgment; and it must be reversed, and the cause remanded.

Judgment reversed.