Frank v. Humphrey

• Decision Date: 20 June 1887
• Citation: 12 N.E. 720,121 Ill. 250
• Parties: FRANK and others v. HUMPHREY and others.
• Court: Illinois Supreme Court

121 Ill. 250

12 N.E. 720

FRANK and others

v.HUMPHREY and others.

Supreme Court of Illinois.

June 20, 1887.

Error to Saline circuit court.

Boyer & Choisser, for plaintiffs in error.

George C. Ross and Chas. H. Layman, for defendants in error.

CRAIG, J.

This was an action of attachment brought by Abraham Frank and others, a firm doing business under the name and style of A. Frank & Sons, against T. H. Humphrey, L. B. King, and A. R. King, partners doing business under the name and style of T. H. Humphrey & Co. The writ of attachment was issued on the twentieth day of November, 1885, and on the same day the sheriff of Perry county levied on the land in controversy as the property of L. B. King. The action was dismissed as to T. H. Humphrey and A. R. King, and the defendant L. B. King filed a plea in abatement, denying to allegations in the affidavit upon which the attachment was issued, upon which issue was joined. Dora J. King appeared, and obtained leave to file a plea of interpleader. In her plea, filed under leave of court, she claimed to be the owner in fee-simple of the lands levied upon under the writ. Upon this plea issue was joined. On the nineteenth day of March, 1886, an agreement was made by the parties as follows: ‘That the issues upon the said interpleader of Dora J. King be tried by the court without a jury, and that, if the said issues on said interpleader of said Dora J. King be found for her, then the attachment against said L. B. King shall be quashed; but if the said issues upon said interpleader be found against the said Dora J. King, then, and in that case, the court shall find the issues on the plea in abatement (to the attachment writ) filed by said L. B. King for the plaintiffs A. Frank & Sons, and against said L. B. King.’

Under the stipulation the evidence of the respective parties was introduced, and the court found the issue as to the title of the property in favor of Dora J. King, and quashed the attachment, and entered judgment against the plaintiffs for costs, to reverse which the plaintiffs in the action sued out this writ of error. The defendant in error has entered a motion to dismiss the action on the ground that a freehold is not involved, and this motion will first be considered.

The plaintiffs in the action claimed that the land upon which they levied belonged to L. B. King. Dora J. King, who was not a party to the suit, appeared, as she had a right to do under section 29, Rev. St. 1874, p. 157, and interpleaded. In the plea it was averred that she was the owner in fee-simple of the property attached under this plea. The question to be determined from the evidence was whether the title to the property attached was in Dora J. King, or in L. B. King, the defendant in attachment.

The case presented was one of title, and nothing else. No other question was presented by the pleadings, and the evidence introduced was all directed to the question of title. The plaintiffs claimed, on the one hand, that the title to the lands attached was in L. B. King, while on the other hand the defendant Dora J. King insisted that she was the absolute owner of the property, and that the title was in her name. We think it a plain proposition that, as the title was directly in issue under the pleadings and evidence, a freehold was involved. But the question is not a new one in this court. The same question arose in Monroe v. Van Meter, 100 Ill. 350, and we held that a freehold was involved. Several cases have been cited where we held a freehold was not involved on a bill filed to foreclose a mortgage, and also where a creditors' bill was filed to set aside a fraudulent conveyance; but they have no bearing in this case. The motion to dismiss will be overruled.

The next and only remaining question presented by the record is whether the finding of the court that Dora J. King owned the property in controversy is sustained by the evidence. There is no dispute in regard to the fact that L. B. King owned the land up to November 17, 1885. On this date he and his wife, Dora J. King, executed a deed purporting to convey to J. W. Ross, and on the eighteenth day of November, J. W. Ross conveyed back to Dora J. King. At the date of this transaction, as the execution of both deeds may be treated as one transaction, the firm of T. H. Humphrey & Co. was indebted ten or eleven thousand dollars, and the only assets of the firm consisted of a stock of goods worth from four thousand to four thousand five hundred dollars. The firm was in failing circumstances. No real estate was owned by any member of the firm, except the land King conveyed to his wife. King testified that he knew that he was embarrassed, and it was really on this account that he made the deed to his wife. Several judgments were entered against the firm on the day the deed was executed. Dora J. King knew that the firm was in trouble before she secured a conveyance of the land, as she admits in her evidence. No consideration passed from Ross to King for the first conveyance, nor was there anything paid, or agreed to be paid, by Dora J. King to Ross for the second conveyance. The deeds were made in the night-time; the first one between 9 and 12 o'clock, and the second one between 12 and 3 o'clock, both in the same night. Under the facts as established by the evidence, it is claimed by appellants that the conveyance to Dora J. King was made with the intent to defraud creditors, and that the title to the land did not pass to her; while, on the other hand, it is claimed that Dora J. King was a creditor of her husband, and, although he was in failing circumstances, he had a right to prefer her. The law is well settled that a debtor in failing circumstances may prefer one creditor to the exclusion of others, when he does so in good faith for a valuable consideration; and the wife may be...