#### James A. Willhite et al. Defendants in Error, vs. William B. Berry et al. Plaintiffs in Error.

Opinion filed February 20, 1908.

1., Appeals and errors—competency of witness cannot be first questioned on appeal. The competency of a witness who was a party to the suit and who was called by the complainants and recalled by the defendants and fully examined by both parties without objection to his competency, cannot be questioned for the first time in a court of review, though one party defended by his conservator, who was represented in court by an attorney.

2. Deeds—when deed amounts only to a release of a mortgage and is not color of title. A quit-claim deed made by a mortgagee to the widow and heirs of the deceased mortgagor after the mortgage has been foreclosed and a certificate of sale issued amounts only to a release of the mortgage, and cannot be relied upon as color of title by grantees of the widow.

3. Limitations—when right to partition is not barred. Where homestead premises worth less than $1000 are mortgaged, the mortgage foreclosed after the death, intestate, of the mortgagor, and a quit-claim deed made to the widow to release the mortgage, a conveyance by her to an heir, though purporting to convey the fee, conveys only the widow’s life interest in the property as a homestead together with a release of her dower in the interest of the grantee, and the Statute of Limitations does not begin to run against the other heirs, in favor of the grantee and his assigns, until the death of the widow, notwithstanding they have had possession since the conveyance by the widow.

Dunn, J., dissenting.

Writ or Error to the Circuit Court of Christian county; the Hon. Truman E. Ames, Judge, presiding.

This was a bill in chancery filed in the circuit court of Christian county by the defendants in error, against plaintiffs in error, for the partition of lot 14, in block 3, in the village of Edinburg, Christian county, Illinois. Answers and replications were filed and a trial was had, and a decree was entered in accordance with the prayer of the bill, and the defendants have sued out a writ of error from this court to review said decree.

*332It appears from the record that Henry H. Willhite died intestate December 14, 1881, seized in fee simple of said premises, upon which he resided with his family as his homestead; that he left him surviving as his widow, Martha J. Willhite, and Aaron M., James A., John H. and Otto E. 'Willhite as his sons and sole heirs-at-law; that George P. Harrington held a mortgage upon said premises at the time of the death of Henry H. Willhite; that he subsequently filed a bill to foreclose said mortgage against the widow and heirs of Henry H. Willhite, deceased that after the foreclosure proceedings had ripened into a certificate of sale, the widow and heirs, with money belonging to Henry H. Willhite’s estate, paid Harrington the amount of said mortgage, and he released the same by making a quit-claim deed to Martha J. Willhite and her second husband, Jacob'Willhite, the said Jacob Willhite being a brother of her first husband; that on February 21, 1890, Martha J. and Jacob Willhite conveyed the said premises by warranty deed to John H. Willhite, and on December 9, 1890, John H. Willhite conveyed said premises to Isaac B. Robertson, and Robertson, on October 10, 1892, conveyed the same to John D. Davidson, and Davidson, on November 21, 1898, conveyed the same to John W. Ruby, and John W. Ruby, on February 24, 1900, conveyed the same to Edwin Ruby, and Edwin Ruby, on March 28, 1903, conveyed the same tAlexander Jones, and on March 28, 1904, Jones conveyed the same to the plaintiff in error William B. Berry; that the immediate and remote grantees of Martha J. and Jacob Willhite went into possession of said premises and paid the taxes levied thereon subsequent to the conveyance by Martha J. and Jacob Willhite to John H. Willhite, and that William B. Berry was in possession of the said premises, through a tenant, at the time this bill was filed; that William B. Berry is distracted and appears in this suit, by a guardian ad litem and his conservator; that Martha J. Willhite died intestate January 16, 1903; that John H. Willhite *333died intéstate September 18, 1898, leaving him surviving his widow and three children, one of whom has died subsequent to his death, and Otto E. Willhite died intestate, unmarried and childless, October 14, 1901.

Frank P. Drennan, for plaintiffs in error.

J. C. & W. B. McBride, for defendants in error.

Mr. Chief Justice Hand

delivered the opinion of the court:

It is first contended that James A. Willhite was an incompetent witness as he was a party to the suit, and William B. Berry was defending by his conservator. Had that question been raised in the court below the contention of the plaintiffs in error would doubtless have been sustained. It was not there raised. James A. Willhite was called by the complainants and recalled by the defendants and fully examined by both parties without objection as to his competency as a witness relative to the heirs of Henry H. Willhite, deceased, the homestead rights of Henry H. Willhite and Martha J. Willhite in said premises, and the manner of the release of the Harrington'mortgage on the said premises. There was no controversy about those facts. The defendant Berry was represented by his conservator, who was represented by an attorney, and the competency of James A. Willhite as a witness not having been raised in the trial court cannot be raised in this court for the first time. (Doty v. Doty, 159 Ill. 46; Millard v. Millard, 221 id. 86.) In the Millard case, on page 91, it was said: “If an objection had been interposed on the ground that the witness was not competent to testify to certain facts, it may be that the same facts could have been proved by other testimony, and the question of the competency of a witness cannot he raised for the first time in an appellate tribunal.”

*334It is next contended that the deed from George P. Harrington to Martha J. and Jacob Willhite was good color of title. That deed was made to release the mortgage which was on the land at the time of the death of Henry H. Willhite, which mortgage was paid by the widow from the funds of her deceased husband’s estate, and the deed amounted only to a release of that mortgage. Lightcap v. Bradley, 186 Ill. 510.

It is finally contended that the title of the defendants in error to said premises was barred by the Statute of Limitations at the time this suit was begun. The premises in question were of less value than $1000 and were the homestead of Henry H. Willhite at the time of his death, and such homestead estate continued in his widow after his death. The conveyance of the widow to John H. Willhite, though apparently a conveyance of the fee to said premises, was only a conveyance of her homestead right in the premises, which was a life estate therein, and a release of her dower right in the fourth of said premises which belonged to John H. Willhite in fee, and during the life of the widow the heirs of Henry H. Willhite could not, as owners of the fee, obtain possession of said premises from Martha J. Willhite or her immediate or remote grantees, hence the Statute of Limitations did not commence to run against them, as remainder-men, during the lifetime of Martha J. Willhitethe widow. She died January 16, 1903, and this suit was commenced in March, 1906, and was therefore commenced in ample time after her death to prevent the running of the Statute of Limitations. The trial court therefore properly held that William B. Berry was entitled to the undivided one-fourth part of said premises as the grantee of John H. Willhite, deceased, and that the defendants in error, as remainder-men, were seized in fee simple of the remaining three-fourths part of said premises. (Mettler v. Miller, 129 Ill. 630; Turner v. Hause, 199 id. 464; Henderson v. Kibbie, 211 id. 556; Weigel v. Green, 218 id. 227; Schroeder *335v. Bozarth, 224 id. 310.) The fact that the parties in possession of said premises holding under the conveyance from Martha J. Willhite to John H. Willhite may have made improvements on said premises or paid the taxes thereon, and did not have notice of the rights of the defendants in error in said premises as remainder-men, did not have the effect to defeat the rights of the complainants in said premises. Mettler v. Miller, supra; Weigel v. Green, supra.

Finding no reversible error in this record the decree of the circuit court will be affirmed. n ¿r ,

n ¿r , Decree affirmed.

Mr. Justice Dunn,

dissenting:

James A. Willhite was a party to the suit interested adversely to plaintiff in error Berry, who was a distracted person, defending by a guardian ad litem and his conservator. James A. Willhite was an interested and incompetent witness. The decree rests upon his testimony alone, for his was the only testimony showing any interest of complainants in the property in controversy. The burden of proving ownership rested on complainants, and they introduced no competent evidence. A guardian ad litem cannot waive any of the rights of the defendant whom he represents, and when incompetent and illegal evidence is introduced without objection by the guardian, the court is bound to notice and exclude such evidence. The objection cannot be waived by the guardian ad litem or by a natural or legal guardian. (Waugh v. Robbins, 33 Ill. 181; Cartwright v. Wise, 14 id. 417; Barnard v. Barnard, 119 id. 92; Turner v. Jenkins, 79 id. 228; Boyer v. Boyer, 89 id. 447; Rhoads v. Rhoads, 43 id. 239.) In Cartwright v. Wise, supra, the court said (p. 418) : “It is true, the guardian ad litem raised no objection to the competency of the witness. But this cannot prejudice the rights of the defendant, whom he represented. The guardian could waive none of his rights. They are committed to the protection of the court, whose duty it is *336to notice legitimate and substantial objections in such a case, whether raised by the guardian or not. He who prosecutes an infant or an idio.t must see to it that he makes out a proper case, and by competent proof, before he can expect a decision in his favor.”