Gordon v. Reynolds

• Decision Date: 15 May 1885
• Citation: 28 N.E. 455,114 Ill. 118
• Parties: GORDON et al. v. REYNOLDS.
• Court: Illinois Supreme Court

114 Ill. 118

28 N.E. 455

GORDON et al.

v.REYNOLDS.¹

Supreme Court of Illinois.

May 15, 1885.

Appeal from superior court, Cook county; HENRY M. SHEPARD, Judge.

Frank P. Reynolds filed a bill against William Gordon and others to set aside a conveyance by Charles Gordon to William Gordon on the ground that it was fraudulent as to plaintiff, a creditor of Charles Gordon. Decree for plaintiff. Defendants appeal. Affirmed.

E. A. Sherburne, for appellants.

Elbridge Hanecy, for appellee.

TUNNICLIFF, J.

On the 3d of March, 1883, appellee exhibited his bill of complaint in the superior court of Cook county against appellants and one Charles Gordon, alleging, in substance, that on that day he had recovered a judgment in said court against said Charles Gordon, for $2,103, and costs; that an execution had been issued, and returned, ‘No property found;’ that on the 16th of August, 1876, said Charles Gordon was the owner in fee of lot 12, in Waller's subdivision of block 20, in Bickerdike's addition to Chicago, and also of a large amount of goods and chattels in the buildings on said real estate, and that on said day he pretended to assign and transfer said real and personal property to his son, William Gordon, for the nominal consideration of $500, but that said deed was never delivered, and never became operative; that said William never paid said $500, or any part of it, and that said real estate and property were held by said William in trust, for the benefit and use of said Charles; that the consideration of said pretended conveyance was that said Charles was to have a home on said premises, and was to receive from said property his future support and maintenance during his life; that said William and his wife soon after moved into the house on said premises, and still continue in the possession thereof; that he has never paid anything on account of said pretended conveyance, and that said premises are now held by him in trust for said Charles, and are liable for his debts; that said pretended conveyance was made to secure to said Charles a secret trust therein, and to hinder, delay, and defraud his creditors, and to prevent said property being sold on execution against said Charles Gordon; that $150 of the indebtedness for which the note was given upon which said judgment was recovered was due and owing from said Charles Gordon to Margaret McGhie, for money loaned by her to him in December, 1874, and the balance of $1,850 was obtained by him of her between the year 1877 and the date of the note, which was January 15, 1883, and that the note was indorsed and delivered by said Margaret McGhie to appellee, before its maturity. There are other allegations made, and discovery sought, such as are usually inserted in a creditors' bill proper; but, defendant's oath being waived, and this not being technically a creditors' bill, they need not be further noticed. Prayer that said pretended conveyance be set aside, and said real and personal estabe subjected to the payment of said judgment, and for such other relief as the nature of the case may require. The bill was sworn to. A demurrer was filed by William and Mary Gordon, which was overruled, and on April 30, 1883, they filed their answer, alleging that William Gordon purchased the property of his father, Charles Gordon, and paid him therefor $997.67, and denied the other averments in the bill substantially, and claimed that appellee is only nominally the complainant, and that Charles Gordon is the real complainant, and that they are conspiring to deprive William and Mary Gordon of the property. On the 1st of December, A. D. 1883, appellee filed a supplemental bill, stating that on the 16th of August, 1876, Charles Gordon was indebred to one Elizabeth Martin in about $200, for which, on the 19th of December, 1876, she brought suit before a justice, recovered judgment, filed a transcript thereof in the circuit court, and caused execution to issue, and the lot in controversy levied upon and sold, and bid in by her, and, not being redeemed from, she obtained a deed, and since the filing of the original bill, to-wit, November 23, 1883, has conveyed the premises to appellee; that long prior to August 16, 1876, Charles Gordon was the owner in fee of the premises, the same not being a homestead, and that on that day Charles conveyed the same to William for a pretended consideration of $500, which was never paid; that the same was made fraudulently, to hinder and delay creditors; that the property was worth $2,500; that William has collected $1,800 in rents from the premises; and that the consideration pretended to have been paid was grossly inadequate, and, if William ever paid anything, he has been more than repaid in rents. Prayer that the conveyance to William be declared fraudulent and void, and appellee be decreed the owner, and for general relief. A demurrer to this supplemental bill having been overruled, the appellants, William and Mary Gordon, filed their answer, denying the indebtedness from Charles Gordon to Martin, and alleging that there was a conspiracy between them and appellee to deprive appellants of the premises; that Martin and Charles Gordon had each filed a bill to set aside the deed from Charles to William, both of which had been dismissed,-one after a demurrer had been sustained to it, and the other for want of prosecution. William and Mary also filed a cross-bill setting up the same facts, and that they have made valuable improvements, and expended large sums for taxes and repairs, but ask no relief on that account. They pray that the judgment, transcript, and sheriff's deed be canceled and set aside. An answer and replication were filed, and on a hearing a decree was rendered, declaring the transfer from Charles Gordon the William Gordon, both as to the lot and the personal estate, void and of no effect as to appellee, and dismissing appellants' cross-bill for want of equity.

The appellants have arranged the errors complained of, under five heads, in their brief: First, in overruling demurrer to the original bill; second, in overruling demurrer to the supplemental bill; third, in allowing appellee (complainant below) to state, as they say, one case in his pleadings, and to present a different one in his evidence; fourth, in excluding proper evidence offered in behalf of appellants; and, fifth, in not dismissing the bill for want of equity. The appellants, not standing by their demurrers, but answering over, must be considered as having waived them, except so far as they may have the same advantage, in substance, on the final hearing, in case complainant (upon his whole case, pleadings and proof considered) is not entitled to the relief sought. Under the third objection it is insisted the court erred in allowing appellee to amend his original bill after the evidence was substantially all heard, so that the allegations and proof might correspond. This was not only not error, but is a practice highly commendable, and absolutely necessary in a great many cases to a proper administration of justice. We fully recognize the rule contended for by counsel for appellants, that a complainant cannot make one case by his pleadings and another by his evidence, and succeed. To obviate this, he should do as was done in this case,-obtain leave to and amend his pleadings so as to fit the case shown by the evidence. It is not material when such amendments are made, except as to the terms the court, in its discretion, might see proper to impose as a condition to permitting the amendment. Usually these amendments are made after the evidence is all in, and the variance is brought out in the course of the argument, and it sometimes occurs that several amendments of this nature and for this purpose are made at different times during the final argument of the case. These amendments are purely discretionary, and ordinarily in the absence of evidence showing an abuse of a reasonable discretion, are not subject to review. Rev. St. c. 22, § 37; Jefferson Co. v. Ferguson, 13 Ill. 33;Hewitt v. Dement, 57 Ill. 500;Booth v. Wiley, 102 Ill. 84.

The court properly excluded the proffered proof by the sheriff that Charles Gordon was ‘so anxious' to have a demandmade upon him for the property to satisfy the execution that he went to the sheriff's office to enable the sheriff to make it. He could not, by his acts or in any other way do anything to prejudice the rights of his creditor, and we do not see, even if Charles Gordon was anxious to have appellee make his judgment out of this property, that it showed any conspiracy to do so wrongfully.

It is said the court erred in refusing to allow Mary Gordon, the wife of William, to answer this question. ‘Do you know whether your husband [appellant William] paid him [Charles] anything for the property?’ Whether this ruling of the court was correct or not cannot avail appellants, as they obtained the benefit of the testimony of Mary concerning that matter on her redirect examination, in which she says: ‘I know that my husband paid Charles Gordon money for the place, because I know he had it to pay and paid it; and after he paid it I had a conversation with Charles about his having received it, and he said he had received $220 from William when he bought the place.’ We do not see how Mary Gordon, the wife of William, could be a competent witness in his behalf in this case.

For the purpose of impeaching Charles Gordon, who had testified that he owed his daughter, Mrs. McGhie, $150 in 1874, he was asked by appellants' counsel if he did not go to her house in 1876 and claim of her that she owed him $100, and if a difficulty did not thereupon ensue between him and Mrs. McGhie and another daughter, (Susan Gordon,) and he go before a justice and swear out a warrant for their arrest, charging them with an assault with a deadly weapon,-which he denied, and appellants introduced several witnesses, while offering the testimony on their...