Forsythe v. Hardin

Citations

• 62 Ill. 206

Syllabus

<p>1. Ejectment—evidence of outstanding title. The plaintiff in an action of ejectment deduced title through a sale under judgment and execution against a prior owner and sheriff's deed. The defendant offered in evidence a prior deed made by the same owner in trust for the benefit of creditors, which was recorded before the recovery of the judgment under which the lands were sold, to defeat a recovery by showing an outstanding title. This deed was held to be fraudulent on its face in imposing conditions and restrictions which were onerous and illegal: Held, that such deed being void could not be used to show an outstanding title.</p> <p>2. Evidence—proof of execution—attesting witness. The rule which requires that the attesting witness to a written instrument shall be called to prove its execution, if within the State, has no application to a case where both parties to the instrument are in court and waive their right to insist on producing such witness.</p> <p>3. The reason for the rule requiring that the subscribing witness shall be called to prove the execution of a written contract, is to protect the interest of the party sought to be charged. Such party is a competent witness to prove its execution without producing the attesting witness. To deny the parties to such contract the right to admit its execution is entirely captious.</p>