delivered the opinion of the court:
This case was before this court on a former appeal. (Stephens v. Hoffman, 263 Ill. 197.) There has been a new trial and another judgment against the defendants, from which they have again appealed.
Frank Gillespie, who- was held on the former appeal to be a competent witness, testified on the last trial to certain facts and circumstances connected with the execution and delivery of the deed and the change of the name of the grantee. He was asked to tell certain conversations with William Stephens relating to the transaction, but upon objection of the appellees was not permitted to do so. This was error. He was a competent witness in the case and the appellants were entitled to his testimony upon any facts relevant to the issue of which he had knowledge. The statements of William Stephens made during the progress of the transaction were competent as a part of the res c/estcef and his statements made afterwards were competent against his successors in title as declarations in disparagement of his own title.
It is insisted that it appears in the declaration that the premises were in the actual possession of a tenant other than the three defendants; that such tenant in actual possession was a necessary party and was not made party to the suit. The declaration names Hoffman, Dooley, Johnson and..........defendants, and in two counts alleged ' that the defendant..........afterwards entered into the said tenements, and the defendants Hoffman, Dooley and Johnson claim to be the owners and collected the rents from the defendant, étc. This does not show that any person other than the defendants named was in possession of the premises. There was no sworn plea denying possession, and under the statute it was therefore not necessary for the plaintiffs to prove that the defendants sued were in possession of the premises.
Frank Gillespie, a former street railway employee, who was the original grantee in the deed, testified on the trial. Witnesses testified that his reputation for truth and veracity was bad, and the court instructed the jury that if they believed, from the evidence, that the witness Frank R. Gillespie had been successfully impeached on the trial or had knowingly sworn falsely as to anything material to the issue the jury were at liberty to disregard his entire testimony unless corroborated. It was error to give this instruction referring to the witness by name. Though he was the only witness whose reputation was attacked he was not the only witness who was contradicted, and the. rule laid down ought to have been made applicable to all the witnesses in the case in the same situation. A witness may be impeached by contradicting him as well as by proof of his bad reputation. To give an instruction of this kind, naming a particular witness, has a tendency to lead the jury to believe such witness, in the court’s judgment, is not entitled to credit.
Objection is made to the following instruction given for the appellees:
“That in an action of ejectment prior peaceable possession of the plaintiffs claiming to be the owners in fee, if proved, is prima facie evidence of ownership and seizin and is sufficient to authorize a recovery unless the defendants show a better title.”
This instruction stated a correct rule of law. Krause v. Nolte, 217 Ill. 298; Chicago Terminal Transfer Railroad Co. v. Winslow, 216 id. 166.
It is urged on behalf of appellants that the appellees failed to prove title from the government or from a common source. They showed that William Stephens was in possession of the land claiming to be the owner and introduced his will in evidence. This, under the authorities just cited, made a prima facie case, and it was not necessary for them to prove title from the government or from a common source as against the appellants, who showed no better title.
Objection is made to an instruction given for the appellees, to the effect that William Stephens’ possession in his lifetime was notice to all the world of his rights in the premises. This instruction, while stating a correct rule of law, was irrelevant to any issue in the case and ought not to have been given.
The plaintiffs are all the heirs of William Stephens and the executors of his will. By his will, which was introduced in evidence, he directed that the premises involved in this suit, with other real estate, should be sold by his executors and the proceeds divided among certain of his heirs. Judgment was rendered in favor of all of the plaintiffs. The action of ejectment concerns the legal title, only. If the legal title was in the executors, then there was no right of recovery in the heirs; if it was in the heirs, there was no right of recovery in the executors. The question whether recovery should be in favor of the executors or of the heirs has not been argúed and we do' not decide it. The judgment cannot properly be rendered in favor of all.
Cross-errors have been assigned by the appellees on the action of the court in permitting the appellants to read the deposition of William L. Peeler, and they have argued this question as well as the competency of the witness Gillespie. These questions were both decided on the former appeal, and cannot, therefore, be again considered. The rules of law announced by an appellate court in the decision of an appeal or writ of error are conclusive upon a second appeal in the same case. In re Estate of Maher, 204 Ill. 25; Newberry v. Blatchford, 106 id. 584.
The appellees have also assigned cross-errors on the action of the court in permitting the appellants to introduce the evidence of Ben W. Mason and Charles A. Marshall given on the trial of a former suit brought by Gillespie against the executors of William Stephens’ will. Mason had died, and it was proper to' prove his testimony taken in the Gillespie case, under the decision in the former appeal. This evidence was in the same situation as the deposition of Peeler. It is objected that Mason testified another time in the Gillespie case and twice in the present case and that his testimony on these different occasions was contradictory. This fact did not affect the competency of the testimony given on any of these occasions. Either party had the right to introduce the testimony given at any or all of these trials, and the question of its consistency went only to the weight of the evidence. Marshall’s testimony, however, should not have been admitted. He was living, and it was not shown that he was beyond the jurisdiction of the court. No reason is given why his presence might not have been secured at the trial or his deposition taken.
The judgment is reversed and the cause remanded.
Reversed and remanded..