Marmon v. Harwood

• Citation: 124 Ill. 104,16 N.E. 236
• Parties: MARMON v. HARWOOD et al.
• Decision Date: 28 March 1888
• Court: Supreme Court of Illinois

124 Ill. 104

16 N.E. 236

MARMON

v.HARWOOD et al.

Supreme Court of Illinois.

March 28, 1888.

Appeal from appellate court, Third district.

Thomas F. Harwood et al., plaintiffs and appellees, bring an action against Mary A. Marmon and others, to set aside certain deeds as frauds upon creditors. Judgment for plaintiffs. Mary A. Marmon appeals.

James S. Ewing and Hamilton Spencer, for appellant.

Kerrick, Lucas & Spencer, for appellees.

CRAIG, J.

This was a creditors' bill, brought by Thomas F. and Willis S. Harwood, in the circuit court of McLean county, against Mary A. Marmon, Maria Paist, Owen L. Cheney, Mary L. Cheney, his wife, and William W. Marmon. The object of the bill was to set aside certain deeds executed by Maria Paist to Mary A. Marmon and Mary L. Cheney, whereby certain real estate was conveyed to them, and subject the property to the payment of a judgment which complainants had recovered against Maria Paist. Upon the hearing in the circuit court on the pleadings and evidence, a decree was rendered in favor of the complainants. Mary A. Marmon appealed to the appellate court, where the decree was affirmed. To reverse that judgment she has appealed to this court. There is no material conflict in the evidence, nor do the parties disagree in regard to the facts established by the evidence upon which the decree was rendered. But it is insisted that the conveyance from Maria Paist to Mary A. Marmon was not fraudulent as against creditors; that at the time the deed was executed she retained property sufficient to pay all her debts; and for this reason the decree was erroneous. It appears, from the evidence, that in the month of April, 1884, Maria Paist and her son, O. L. Cheney, executed and delivered to H. T. Levin a promissory note for $3,556, due in two years, with interest at 7 per cent. per annum. This note was sold to the complainants, and they recovered a judgment upon it for $4,053.84, in April 30, 1886. An execution was issued upon the judgment, and returned ‘No property found.’ At the time the note was executed, Maria Paist was the owner, in fee, of lot 16, the east half of lot 17, and the south half of lot 19,-all in White's addition; and was the owner of lot 6 of the assessor's subdivision of lots 50-54 of the original town,-all in the city of Bloomington; and the east half of lot 4, in block 1, in Normal. She also had notes made by W. W. Marmon for about $2,300. The first-mentioned piece of property is known as the ‘homestead;’ the second piece, as the ‘Cheney homestead;’ and the third, as the ‘Hammerslaugh building.’ Appellant and O. L. Cheney are the daughter and son of Maria Paist, and Mary Cheney is the wife of O. L. Cheney. On the 5th day of November, 1884, Mrs. Paist made two deeds, i. e., one to appellant for ‘the homestead,’ reciting a consideration of $7,000; the other to Mary Cheney for the ‘Cheney homestead,’ the ‘Hammerslaugh building,’ and the Normal property. The homestead which was conveyed to appellant was clear from incumbrance, and worth $7,000. The Cheney homestead was incumbered for $1,000, but was worth $2,500. The Hammerslaugh property was mortgaged for some $8,000, but worth $4,000 above the mortgage. The lots in Normal were worth $300. The deeds purporting to convey the property to appellant and to Mary Chency were executed without consideration. At the time of these conveyances Mrs. Paist was indebted in a promissory note which she had signed with her son, in the sum of $1,000, in addition to the debt she owed complainants. The property she conveyed without consideration exceeded in value $13,000. She retained no real estate, or property of any character, except notes of W. W. Marmon for $2,300, and a note, secured by a second mortgage on the fair-grounds at Bloomington, for $6,000. This item was subject to a prior mortgage of over $11,000, held by one Brokaw. On the 16th day of March, 1885, the Hammerslaugh property was sold to Dr. Barnes for $4,000, subject to the mortgage in the property. Soon after this sale the fair-grounds upon which Mrs. Paist held a second mortgage were advertised for sale in the first mortgage, and at the sale Mrs. Paist became the purchaser for the amount of the debt and costs. Upon making the purchase she paid $5,000 cash down, and gave a mortgage on the property to secure the remaining $7,000. The cash payment was made up of $4,000 which Mrs. Cheney had secured from the sale of the Hammerslaugh property, and $1,000 which she borrowed. On the 29th day of September, 1885, Maria Paist conveyed the fairgrounds to James B. Stevenson for $7,500, subject to the mortgage she had given of $8,000. She received-cash, $2,000; Normal property, $2,500; notes, $3,000. The Normal property was soon sold; and the cash notes and proceeds of the Normal property were all turned over by Mrs. Paist to her son, O. L. Cheney, and he lost the entire amount in the Chicago board of trade. The notes Mrs. Paist held against Marmon had all been disposed of before complainant's debt matured, except a note for $1,300, which was turned over to secure attorney's fees to defend this suit.

In Patterson v. McKinney, 97 Ill. 41, where a...