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after he entered into possession of the premises and continued to reside thereon with his family until his death, in 1903. During all this period the record title stood in his name. After his death his widow, Mary E. Okerson, and his two minor children by his last marriage, continued to reside on the land, and were residing thereon when the original bill was filed herein, on July 11, 1911. The evidence further shows, without contradiction, that some time during the year 1883 or 1884 Albert Okerson and his first wife, Mary Okerson, executed and delivered a warranty deed conveying the premises in question to their son-inlaw, Joseph Mason, and that about two years later Joseph Mason and his wife executed and delivered a warranty deed conveying the same premises to the said Mary Okerson; that neither of these deeds was ever recorded and that none of the parties to this suit could produce them upon the trial. Thereafter, about the year 1887, Mary Okerson died, and Albert Okerson thereafter continued to reside upon the premises until his death, in 1903. Soon after the death of Albert Okerson, his widow, Mary E. Okerson, called upon the complainants and asked them whether they would permit her to remain on the premises. They told her they wanted her to stay on the farm and raise her two children, and that all they asked of her was that she pay all taxes assessed against the land.
The evidence concerning the execution and delivery of the deed from Albert Okerson and wife to Joseph Mason and the deed from Joseph Mason and wife to Mary Okerson consisted of the testimony of witnesses, one of whom, it was admitted, if present, would testify that he was present when these deeds were executed and delivered by the respective grantors, and others testified to statements made to them by Albert Okerson during his lifetime, tending to show, first, that he had sold the land to Joseph Mason, and second, that Mary Okerson, his wife, afterwards obtained
the title from Joseph Mason. There is nothing in the record tending to contradict this testimony.
The principal contentions of defendants in error in support of the decree are, first, that no foundation was laid for the admission of secondary evidence concerning the execution and delivery of these deeds; second, that the evidence is not sufficient to sustain a finding that any such deeds were ever executed and delivered; and third, that even though said deeds were executed and delivered, as claimed by plaintiffs in error, the claim of the six children of Mary Okerson under title derived from their mother has been barred by the Statute of Limitations.
In answer to the first contention it is sufficient to say that no objection was made to the admission of the secondary evidence. When the primary proof cannot be produced and secondary evidence is admitted without objection it becomes a part of the case, and although it is not the best evidence it must be considered, as it is relevant and tends to elucidate the question in issue. By permitting it to be introduced the party against whom it is offered dispenses with the production of the superior evidence. Pittman v. Gaty, 5 Gilm. 186.
Defendants in error offer no satisfactory argument in support of the second contention. The testimony that the warranty deed to Mason was executed and delivered and the warranty deed from Mason and wife to Mary Okerson was also executed and delivered is clear and unequivocal, and it stands in this record uncontradicted. Plaintiffs in error moved for a continuance, and in support of the motion filed the affidavit of Commodore A. Okerson, stating that James M. Carr, a material witness, was so ill that he was unable to attend court or to have his deposition taken, and that the plaintiffs in error expected to prove by Carr the execution and delivery of the deed to Mason and of the deed to Mary Okerson, setting out in detail the facts expected to be proven by Carr. In order to avoid the con
tinuance defendants in error admitted that if Carr were present he would testify to the facts set forth in the affidavit. On the hearing this affidavit was offered and is the only direct evidence in the record of the execution and delivery of those deeds. Under such circumstances a court of review, in passing upon the weight of the evidence, enjoys the same advantages as those possessed by the chancellor. This evidence is supported by the testimony of two of the witnesses called on behalf of plaintiffs in error and of two witnesses called on behalf of defendants in error, all of whom testified to statements made by Albert Okerson tending to confirm the fact that a conveyance had been made to Mason of the home farm and that the same had been re-conveyed by Mason to Mary Okerson. Under this state of the proof the decree of the circuit court is erroneous and must be reversed.
There is no merit in the contention that the right of the six children of Mary Okerson to claim title to the premises has been barred by the Statute of Limitations, as no one who has been in possession of the property since the death of Mary Okerson has held adversely to her children.
The only proof in the record as to the contents of the deed from Albert Okerson and wife to Mason is that contained in the affidavit of Commodore A. Okerson as to what was expected to be proven by the witness Carr. By that affidavit it was not disclosed whether the deed from Okerson and wife to Mason contained a release or waiver of Okerson's homestead estate, as was required by the statute in force at that time. Okerson at that time resided upon the land in question and occupied it, together with his family, as his homestead. Possession was not delivered to Mason pursuant to the execution and delivery of the deed, but, on the contrary, Okerson continued in possession of the real estate and occupied it as a homestead from that time until the time of his death, in 1903. The affidavit simply stated that it was expected to prove by
Carr that Okerson and wife executed and delivered to Mason a warranty deed conveying these premises, and it will not be presumed that this deed contained a release and waiver of Okerson's homestead estate, and the deed must be held to have conveyed only the excess, if any, above the homestead estate of $1000. Hence the fee to the homestead never vested in Mason, and as Albert Okerson remained in possession of his homestead until the time of his death, Mary Okerson and her heirs, by the deed from Mason, acquired title only to that part of the real estate, if any, in excess of the homestead estate. If at the time of the conveyance to Mason the whole of the real estate was not worth to exceed $1000, the deed to Mason conveyed nothing and was void, in which event the decree of the circuit court in ordering partition among all the children of Albert Okerson was correct. But there is no proof whatever of the value of this land at any time, and a correct determination of the interests of the parties cannot be had until proof of the value of the land at the time of the conveyance to Mason is made. If at the time of that conveyance the value of the land was in excess of $1000, Albert Okerson then retained homestead estate and the excess passed to Mason. An allotment became necessary to define the limits of Okerson's homestead estate and he had the right at any time during his lifetime to have his homestead assigned, in which event the value of the estate would have been determined as of the time of the assignment and not as of the time of the transfer to Mason. (Garwood v. Garwood, 244 Ill. 580.) Okerson having failed to have his homestead assigned to him during his lifetime, the limits of the homestead estate and the value of the same, in case the value of the land at the time of the deed to Mason exceeded $1000, must be determined in this proceeding as of the present time.
As the decree is palpably against the uncontradicted testimony of Carr it must be reversed, but in order to
properly protect the rights of the minor defendants and to correctly determine their interests in the real estate it will be necessary to require proof of the value of the land at the time of the conveyance to Mason. The court on its own motion will protect the rights of infants where they are manifestly entitled to some relief, although their guardian ad litem may neglect to claim it in their behalf. Stark v. Brown, 101 Ill. 395.
The decree of the circuit court is reversed and the cause is remanded, with directions to require proof to be made of the value of the land sought to be partitioned as of the time of the conveyance from Albert Okerson and wife to Mason, in 1884, and to enter a decree, based upon the proof thús completed, which shall not be inconsistent with the views herein expressed.
Reversed and remanded, with directions.
THE COMMISSIONERS OF HIGHWAYS OF TOWN OF TAMPICO, Appellee, vs. THE DRAINAGE COMMISSIONERS OF DISTRICT NO. 2, ETC., Appellant.
Opinion filed December 17, 1912.
I. APPEALS AND ERRORS—appeals in mandamus are controlled by laws governing other civil cases. Appeals and writs of error in mandamus cases are to be prosecuted in Illinois in the same manner, on the same terms and with like effect as in other civil cases. 2. SAME when appeal in mandamus lies to Appellate Court. An appeal from a judgment in a mandamus proceeding brought by highway commissioners to compel drainage commissioners to build a bridge, and, if necessary, to levy a tax to raise a fund for that purpose, should be taken to the Appellate Court, where neither the validity of a statute, a franchise, a freehold nor the revenue is involved, the question being whether the petitioner or the respondent is charged with the duty of building the bridge.
APPEAL from the Circuit Court of Whiteside county; the Hon. FRANK D. RAMSAY, Judge, presiding.