Mr. Justice Walker
delivered the opinion of the Court:
This was a bill, filed by appellants, against Mary A. West and against minor heirs claiming to have an interest in common with complainants, for the partition of the north-west quarter of section 8, town 17 north, range 3 east of the fourth principal meridian, in Henry county, and to remove a deed to her from her father for the land, as a cloud on their title.
It appears that Allan, the father of Mrs. West, entered the land in controversy, with quite a number of other tracts of land, for David A. Smith, in the year 1836; that the title to this tract stood in the name of Smith until the time of his death, which occurred on the 13th of July, 1865, and his will was probated on the 26th of that month, and by it his ten children, as devisees, became invested with the title to this land, if he held any at his death. The bill, as finally amended, claimed that complainants owned the title.
It was set up in .the answer that Smith sold this .tract to Allan in consideration that he would fence certain other of Smith’s lands, which he did according to the terms of the agreement; that he, in 1856, took the actual possession of and enclosed it, and put about twenty acres into cultivation, and had been in the actual and exclusive possession of it ever since, until he sold it to Mrs. West, by quitclaim deed, on the 10th day of July, 1879, and she had been so in possession ever since, claiming it as the owner. Complainants on leave amended their bill, and made Allan a party defendant. He thereupon filed a disclaimer to all interest in the premises. He alleges that he does not claim, and has not claimed since before the filing of the first amended bill therein, any right, title or interest in or to the estate or premises described in the bill, and disclaims all interest and right of every kind in the estate or premises. Complainants filed a replication to Mrs. West’s answer, and also a replication to Allan’s disclaimer. A trial was first had on Allan’s disclaimer, and the issue was found in his favor. A trial was subsequently had on the bill as amended, and Mrs. West’s answer, and the court found in her favor, and rendered a decree dismissing the bill at complainants’ costs, and they appeal to this court.
Whether the practice of trying the issue on Allan’s disclaimer was or not correct, can not matter, as from the evidence in the case he was a competent witness, both at common law and under the statute. It clearly shows he had no interest in the result of the suit. Under the practice in chancery a defendant might always testify for a co-defendant, if his evidence did not necessarily involve his own interest, otherwise a complainant could have prevented a witness from testifying, simply by making him a defendant to the bill.
It is urged that Allan’s deed to Mrs. West only having conveyed a life estate to her, and a remainder to the children of her body, or such as might be living at her death, or the descendants of any one that might be then deceased, the fee remained in him or his heirs until her death, and the fee would not vest in the remainder-man until the life estate should be expended, and hence the remainder was contingent. We do not so understand the rule. We understand it, that when a conveyance of the particular estate is made to support a remainder over, the tenant for the particular estate takes it, and if the remainder-man is in being, he takes the fee. In such a case the remainder is not contingent as to its becoming a vested remainder, because the title vests in the remainder-man on the delivery of the deed. The title thus vested becomes an estate of inheritance, and in ease the remainder-man dies before the previous .estate is expended, the title passes to his heirs, unless the deed directs otherwise.
Fearne, in his work on Remainders, p. 1, in defining them, says: “An estate is vested when there is an immediate right of present or future enjoyment. An estate is vested in possession when there is a right of present enjoyment. An estate is vested in interest when there is a present fixed right of future enjoyment. An estate is contingent when a right of enjoyment is to accrue on an event which is dubious and uncertain. ” Here the event is not uncertain. The children of Mrs. West were in being. Her death is certain to occur, although the time is dubious.
Chancellor Kent,.vo1. 4, p. 202, defines a vested remainder thus: “A remainder is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. It gives a legal or equitable seizin. * " * * A vested remainder is a fixed interest, to take effect in possession after a particular estate is spent. , If it be uncertain whether a use or estate limited in futwro shall ever vest, that use or estate is said to be a contingency. But though it may be uncertain whether a remainder will ever take effect in possession, it will nevertheless be a vested remainder if the interest is fixed. * * * Every reiñainder-man may die, and without issue, before the death of the tenant for life. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. When the event on which the preceding estate is limited must happen, and when it also may happen before the expiration of the estate limited in remainder, the remainder is vested, as in the case of a lease to A for life, remainder to B during the life of A, the preceding estate determines on an event which must happen, and it may determine by forfeiture or surrender before the expiration of A’s life, and the remainder is therefore vested. ” The definition and illustrations which he gives are taken from the unquestioned doctrines as collated by Fearne, Cruise, and other commentators of acknowledged authority, and fully supported by adjudged cases.
The application of the rule is well illustrated by Chancellor Walworth, in Hawley v. James, 5 Paige, 466. He says: “A remainder is vested in interest where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession of the land upon the ceasing or failure of all the precedent estates, provided the estate limited to him by the remainder shall so long last,—in other words, where the remainder-man’s right to an estate in possession can not be defeated by third persons, or contingent events, or by- a failure of a condition precedent, if he lives, and the estate limited to him by way of remainder continues till the precedent estates are determined, his remainder is vested in interest.” So, in Moore v. Littel, 41 N. Y. 72, it is said: “Decisions and text-writers agree, that- by the common law a remainder is vested where there is a person in being who has a present capacity to take in remainder, if the particular estate be then presently determined; otherwise the remainder is contingent. It is said that before the remainder is vested the person must be ascertained, and in this sense that is perfectly true'. The person must be one to whose competency to take no further or other condition attaches, etc., i. e. in respect to whom it is not necessary that any event shall occur, or condition be satisfied, save only that the precedent estate shall determine. ”
In this case, under all of the conditions of the rule, the remainder passed from and vested in the children of Mrs. West.
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Mr. Justice Walker
delivered the opinion of the Court:
This was a bill, filed by appellants, against Mary A. West and against minor heirs claiming to have an interest in common with complainants, for the partition of the north-west quarter of section 8, town 17 north, range 3 east of the fourth principal meridian, in Henry county, and to remove a deed to her from her father for the land, as a cloud on their title.
It appears that Allan, the father of Mrs. West, entered the land in controversy, with quite a number of other tracts of land, for David A. Smith, in the year 1836; that the title to this tract stood in the name of Smith until the time of his death, which occurred on the 13th of July, 1865, and his will was probated on the 26th of that month, and by it his ten children, as devisees, became invested with the title to this land, if he held any at his death. The bill, as finally amended, claimed that complainants owned the title.
It was set up in .the answer that Smith sold this .tract to Allan in consideration that he would fence certain other of Smith’s lands, which he did according to the terms of the agreement; that he, in 1856, took the actual possession of and enclosed it, and put about twenty acres into cultivation, and had been in the actual and exclusive possession of it ever since, until he sold it to Mrs. West, by quitclaim deed, on the 10th day of July, 1879, and she had been so in possession ever since, claiming it as the owner. Complainants on leave amended their bill, and made Allan a party defendant. He thereupon filed a disclaimer to all interest in the premises. He alleges that he does not claim, and has not claimed since before the filing of the first amended bill therein, any right, title or interest in or to the estate or premises described in the bill, and disclaims all interest and right of every kind in the estate or premises. Complainants filed a replication to Mrs. West’s answer, and also a replication to Allan’s disclaimer. A trial was first had on Allan’s disclaimer, and the issue was found in his favor. A trial was subsequently had on the bill as amended, and Mrs. West’s answer, and the court found in her favor, and rendered a decree dismissing the bill at complainants’ costs, and they appeal to this court.
Whether the practice of trying the issue on Allan’s disclaimer was or not correct, can not matter, as from the evidence in the case he was a competent witness, both at common law and under the statute. It clearly shows he had no interest in the result of the suit. Under the practice in chancery a defendant might always testify for a co-defendant, if his evidence did not necessarily involve his own interest, otherwise a complainant could have prevented a witness from testifying, simply by making him a defendant to the bill.
It is urged that Allan’s deed to Mrs. West only having conveyed a life estate to her, and a remainder to the children of her body, or such as might be living at her death, or the descendants of any one that might be then deceased, the fee remained in him or his heirs until her death, and the fee would not vest in the remainder-man until the life estate should be expended, and hence the remainder was contingent. We do not so understand the rule. We understand it, that when a conveyance of the particular estate is made to support a remainder over, the tenant for the particular estate takes it, and if the remainder-man is in being, he takes the fee. In such a case the remainder is not contingent as to its becoming a vested remainder, because the title vests in the remainder-man on the delivery of the deed. The title thus vested becomes an estate of inheritance, and in ease the remainder-man dies before the previous .estate is expended, the title passes to his heirs, unless the deed directs otherwise.
Fearne, in his work on Remainders, p. 1, in defining them, says: “An estate is vested when there is an immediate right of present or future enjoyment. An estate is vested in possession when there is a right of present enjoyment. An estate is vested in interest when there is a present fixed right of future enjoyment. An estate is contingent when a right of enjoyment is to accrue on an event which is dubious and uncertain. ” Here the event is not uncertain. The children of Mrs. West were in being. Her death is certain to occur, although the time is dubious.
Chancellor Kent,.vo1. 4, p. 202, defines a vested remainder thus: “A remainder is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. It gives a legal or equitable seizin. * " * * A vested remainder is a fixed interest, to take effect in possession after a particular estate is spent. , If it be uncertain whether a use or estate limited in futwro shall ever vest, that use or estate is said to be a contingency. But though it may be uncertain whether a remainder will ever take effect in possession, it will nevertheless be a vested remainder if the interest is fixed. * * * Every reiñainder-man may die, and without issue, before the death of the tenant for life. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. When the event on which the preceding estate is limited must happen, and when it also may happen before the expiration of the estate limited in remainder, the remainder is vested, as in the case of a lease to A for life, remainder to B during the life of A, the preceding estate determines on an event which must happen, and it may determine by forfeiture or surrender before the expiration of A’s life, and the remainder is therefore vested. ” The definition and illustrations which he gives are taken from the unquestioned doctrines as collated by Fearne, Cruise, and other commentators of acknowledged authority, and fully supported by adjudged cases.
The application of the rule is well illustrated by Chancellor Walworth, in Hawley v. James, 5 Paige, 466. He says: “A remainder is vested in interest where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession of the land upon the ceasing or failure of all the precedent estates, provided the estate limited to him by the remainder shall so long last,—in other words, where the remainder-man’s right to an estate in possession can not be defeated by third persons, or contingent events, or by- a failure of a condition precedent, if he lives, and the estate limited to him by way of remainder continues till the precedent estates are determined, his remainder is vested in interest.” So, in Moore v. Littel, 41 N. Y. 72, it is said: “Decisions and text-writers agree, that- by the common law a remainder is vested where there is a person in being who has a present capacity to take in remainder, if the particular estate be then presently determined; otherwise the remainder is contingent. It is said that before the remainder is vested the person must be ascertained, and in this sense that is perfectly true'. The person must be one to whose competency to take no further or other condition attaches, etc., i. e. in respect to whom it is not necessary that any event shall occur, or condition be satisfied, save only that the precedent estate shall determine. ”
In this case, under all of the conditions of the rule, the remainder passed from and vested in the children of Mrs. West. They were then in being, were ascertained and designated as the remainder-men, and were capable of, and did take, a vested remainder, and as has been seen, them death before them mother, without issue, would not prevent or defeat the vested remainder,—it would in such a ease descend to- their heirs. But whatever may become of the estate in the future, we have no doubt it vested in the children of Mrs. West when the deed was delivered. It then follows that Allan had parted with all of his title by conveying the land, and was not incompetent as a witness, because he held no title to or an interest in the land. •
Nor is there the slightest force in the objection that Allan reserved a lien of $'5000 on the land. That was fully paid before he was made a party to the suit. He therefore held no title to or interest in the land, immediate or- remote, direct or collateral, and was competent to testify.
It is urged, however, that the evidence of Allan does not sustain the decree. It is clear, consistent, reasonable, and apparently fair. If it is to be believed, it is ample. He specifies the time, place and terms of the purchase. They are sufficient in every respect to have authorized the specific performance of the contract, had it been asked by original or cross-bill in the case. Its terms are not doubtful or ambiguous, and Allan swears that he did all things required by the agreement, and performed it in full; that he took possession of the property, and made lasting and valuable improvements on it, by fencing the entire tract, and breaking and cultivating a part. This was sufficient to take the contract out of the statute and vest an equitable title in Allan, and he conveyed it to Mrs. West, who continued the possession. If, then, this testimony is reliable, it sustains the decree.
It is urged that the evidence of Allan is not reliable, because, it is insisted, he was mistaken in the date of one or two occurrences. There is, perhaps, nothing more difficult to remember than precise dates. After many years but few can from memory even approximate them. If the evidence of witnesses depended for credence on accuracy in such matters, but few would stand the test. Again, Allan had his house and all of his papers destroyed before he testified, and labored under the disadvantage of not having his books and memoranda from which to refresh his memory. That he could not remember dates, or even should forget occurrences through a period of thirty years, is not surprising, but on the contrary was to be reasonably expected.
It is urged that Allan, two or three years, in paying taxes on Smith’s list of lands, included this, and thus showed he had no claim to it. That such a mistake might occur in paying taxes on a considerable list for thirty years is not surprising; nor does it appear that although paid in Smith’s name the money was not furnished by Allan, and the amount of the taxes on this tract never charged to Smith in their settlements during his life, or with the executor after his death. Neither is alive, nor did complainants produce Smith’s books to repel that conclusion. On the other hand, this tract seems to have always been assessed in Allan’s name, when none of the others were. He took possession of this tract and used it, but there is no pretense that he did either of the others. These are circumstances strongly corroborating his evidence. The circumstances relied on to impeach his positive, clear, and apparently fair and truthful evidence, are too slight to induce us to disbelieve and reject it as untrue. He and Smith were brothers-in-law, and were on the most friendly and confidential terms, and from that fact dealt and acted with less care than had they not been thus connected by family ties. They seem to have had unshaken faith in the fairness and honesty of each otherj hence writings were not drawn to evidence their contracts. Allan’s agency was not in writing, nor did receipts pass on settlements, so far as we can learn from this record; nor did they ever, so far as we can see, have the slightest difference in reference to this or any other matter. From their relations they did their business more loosely and with less care than would strangers or persons having less confidential relations. We, on a careful examination of the evidence,- believe it is true in all of its essential particulars, and that it fully supports the decree.
The views here expressed render it unnecessary to discuss the question whether the Statute of Limitations has barred the suit. If, as we have seen, Allan purchased the land from Smith, and performed the agreement on his part, after having entered into possession under the contract, that affords a complete bar to the relief sought.
It is urged that the court erred in decreeing the fee to be in Mrs. West and her children. A defendant is not entitled to relief on an answer alone, whatever the evidence may be on the hearing. To obtain relief it must be on an original or cross-bill. None was filed in this ease, nor was the answer made a cross-bill, according to the rule announced in Thielman v. Carr, 75 Ill. 385, and Purdy v. Henslee, 97 id. 389, and in this there was error. On the evidence heard the court should have dismissed the bill, at the costs of complainants.
So far as the decree affords relief, beyond the dismissal of the bill, it will be reversed, but in all other respects affirmed, and the costs of this court will be equally divided.
Decree reversed in fart and in fwrt affirmed.