Hallorn v. Trum

• Decision Date: 16 June 1888
• Citation: 125 Ill. 247,17 N.E. 823
• Parties: HALLORN et al. v. TRUM.
• Court: Illinois Supreme Court

125 Ill. 247

17 N.E. 823

HALLORN et al.

v.TRUM.

Supreme Court of Illinois.

June 16, 1888.

Appeal from circuit court, Effingham county; WILLIAM C. JONES, Judge.

Ejectment by August Trum, trustee for J. & J. Slevin & Co., against Jane Hallorn and Thomas Cain. Judgment for plaintiff. Defendants appeal.

Wood Bros., for appellants.

S. F. Gilmore, for appellee.

CRAIG, J.

This was an action of ejectment brought by appellee against the appellants to recover a certain tract of land in Effingham county. Both parties claim under Anthony Veneman as a common source of title. It appears from the evidence that Anthony Veneman, on the 9th day of February, 1867, conveyed the land by deed to Joseph Veneman, which was recorded on the 16th day of same month. On the 24th day of July, 1867, Joseph executed a power of attorney to Anthony to sell the land. Both parties claim that the conveyance from Anthony to Joseph Veneman was fraudulent and void as against creditors, and each party claims title to the land under proceedings instituted in court to set aside the fraudulent conveyance, and subject the property to the payment of judgments recovered against the grantor, Joseph Veneman, and the real controversy between the parties is as to the priority of the respective titles. Slevin & Co., under whom appellee claims, obtained a judgment in the circuit court of the United States for the Southern district of Illinois against Anthony Veneman for $1,711.12, on the 22d day of June, 1867. On the 24th day of July following they filed, in the same court, a creditors' bill against Anthony and Joseph Veneman, in which they alleged that the conveyance was fraudulent and void, and asked that they be enjoined from selling the premises, and that the deed be set aside. Process was issued against both defendants and on Anthony Veneman, August 2, 1867, and a decree pro confesso was entered against him January 6, 1870. No service, however, was had on Joseph Veneman. Alias summons issued against him October 30, 1867, which, with five others subsequently issued, were returned without service, for the reason that the defendant was a resident of Indiana. No publication was made until August 20, 1872, when due publication of notice, as required by the act of congress, was given, and a final decree was rendered in United States court March 3, 1873, setting aside the deed of Anthony to Joseph Veneman as fraudulent against Slevin & Co., and authorizing the master to sell lands embraced therein, which the master did, September 4, 1873, to John Slevin, one of the plaintiffs, for $2,172.19. The master's deed to John Slevin under said decree to the land in controversy, and other land, February 24, 1875, was duly recorded. The title thus acquired became vested in appellee before the commencement of this suit. The appellants relied upon title derived as follows: October 8, 1867, John B. Bruggeman recovered judgment in the circuit court of Effingmam county against Anthony Veneman for $722.18, upon which execution was issued, and returned no property found. September 8, 1871, Bruggeman filed a creditors'bill against Anthony Veneman and Joseph Veneman, to set aside the deed of February 9, 1867. Personal service on Anthony; affidavit of non-residence of other defendant filed, and first publication of notice made same day. Decree rendered April 5, 1872, that the deed was fraudulent and void, and the land embraced therein, including land in controversy, subject to Bruggeman's judgment. Alias execution issued on Bruggeman's judgment June 27, 1872, levied on land in controversy and other lands in said deed (excepting S. E. N. E. sec. 4-7-6) as property of Anthony Veneman. All sold to John B. Bruggeman at sheriff's sale July 25, 1872. Certificate filed and recorded. Sheriff's deed to John B. Bruggeman, November 15, 1873, and filed for record March 12, 1875. On the 21st January, 1875, Bruggeman conveyed to John F. Waschefort; deed recorded on 23d of same month. On April 3, 1884, the heirs of Waschefort conveyed to appellant Jane Hallorn.

No importance is to be attached to the fact that the judgment under which appellee claimed title was rendered prior to the rendition of the judgment under which appellant derived title. The legal title having passed from the judgment debtor before the rendition of either judgment by a valid deed as between him and his grantee, the judgments did not become liens on the lands conveyed in the order of their rendition. Lyon v. Robbins, 46 Ill. 277, is conclusive upon this question. The same Sherry, 2 Wall. 248. Before the . sherry, 2 Wall. 248. Before the judgments were rendered, the judgment debtor, Anthony Veneman, had conveyed his lands. There was therefore no estate upon which the lien of a judgment could attach. In order, therefore, to determine the priority of lien between the two contesting creditors, we must look to the proceedings in equity instituted by them to remove the fraudulent conveyance and subject the lands to the satisfaction of these judgments. It will be observed that Slevin & Co., from whom appellee derived title, filed their bill to set aside the fraudulent conveyance on July 24, 1867; while Bruggeman, under whom appellant claims, did not file his bill until September 8, 1871. The latter, however, obtained the first service on Joseph Veneman, and also obtained the first decree setting aside the fraudulent deed. But it is insisted that Slevin & Co. were the most vigilant; that the filing of their bill, service on Anthony Venemen, one of the defendants, on August 2, 1867, issuing alias summons for Joseph Veneman, constituted lis pendens; th...