Ferbrache v. Ferbrache

Citations

• 110 Ill. 210

Syllabus

<p>1. Witness—competency—as against persons defending as heirs. A mother who has made a warranty deed for a tract of land to her son, is not a competent witness for such son on a bill by him against the heirs of another son, to set aside a prior deed made by her to the deceased son, as a cloud upon the title of the complainant, in respect to facts which occurred in the lifetime of the deceased son, she having a direct interest in the result of the litigation. Nor is the complainant competent.</p> <p>2. Warranty of title—whether a protection as against subsequent acts of grantee. Where the owner of a tract of land has made two warranty deeds for the same, to different persons, the first of which is attacked and sought to be avoided by the second grantee on the ground that the first grantee had rescinded the contract, or reconveyed whatever interest he had, the grantor’s interest is not equally balanced, for the reason that the covenants in the prior deed would not extend to a consequence of any act of the prior grantee, and embrace the case of any future defect of title in him, caused by a subsequent conveyance of the land made by himself.</p> <p>3. Statute of Frauds—verbal contract to convey land—part performance. By the Statute of Frauds all contracts for the transfer of title to land must be in writing, and to take a case out of the statute on the ground of part performance, it is indispensable that the contract shall be established by competent proofs to be clear, definite and unequivocal in all its terms, and that possession shall have been taken of the land under the contract, and payment of the purchase money made.</p> <p>4. Where the evidence, on a bill to enforce a verbal contract for the transfer of land, is of a loose and vague character, lacking in definiteness as to the interest surrendered,—whether a voluntary gift or not, and what were the terms,—and it is not shown that any consideration has been paid, or there was any to be paid, the contract will no