Johnson v. Huber

• Decision Date: 05 November 1890
• Citation: 134 Ill. 511,25 N.E. 790
• Parties: JOHNSON et al. v. HUBER.
• Court: Illinois Supreme Court

134 Ill. 511

25 N.E. 790

JOHNSON et al.

v.HUBER.¹

Supreme Court of Illinois.

Nov. 5, 1890.

Appeal from appellate court, fourth district.

Bill by Mary Huber against John T. Johnson, Fredericka Nolan, and Thomas Nolan. Decree for complainant, affirmed by the appellate court. Defendants appeal. Complainant's deposition taken in 1888 showed that she was a married woman residing in Missouri, but there was nothing in the record to show where her residence was when the suit was begun. Rev. St. Ill. c. 33, § 1, provides that ‘in all cases in law and equity,’ any person not a resident of the state shall give a bond for costs before instituting any suit.

W. L. Fairman and A. W. Hope, for appellants.

appellants.

John J. Brenholt and R. S. Sawyer, for appellee.

WILKIN, J.

As amended, this was a bill by appellee, as a judgment creditor of appellants Johnson and Fredericka Nolan, and one Gesch W. Elsen to set aside an alleged fraudulent conveyance of certain lots in the city of Alton to appellant Thomas Nolan. The bill alleges the recovery of a judgment against said John T. Johnson, Fredericka Nolan, and Gesch W. Elsen at the October term, 1886, of the circuit court of Madison county. Also that on August 16, 1886, after contracting the indebtedness on which said judgment was rendered, they jointly conveyed said lots to said Thomas Nolan, who, with said Fredericka, his wife, executed and delivered at the same time, a mortgage on said premises to secure the payment of a promissory note of $1,000 payable to said John T. Johnson, which mortgage and deed were each executed with intent to hinder and delay complainant, and other creditors of said Gesch W. Elsen, John T. Johnson, and Fredericka Nolan; that said Gesch W. Elsen owned but a life-estate in the conveyed premises, and that said Johnson and Fredericka Nolan were the owners thereof in fee, subject to said life-estate; that said Gesch W. Elsen died in July, 1887. The original bill was filed September 14, 1887. The defendants, by their joint answer, admitted the recovery of judgment against John T. Johnson and Fredericka Nolan by appellee, but said noting as to Gesch W. Elsen being a party thereto. They admit the execution of the deed and mortgage, as alleged in the bill, but deny that they were fraudulent, or intended to delay complainant, or other creditors of the grantors, and aver that they were each made in good faith, for a valuable consideration. A decree was rendered setting aside the deed and mortgage, and subjecting the interests of said Johnson and Fredericka Nolan in said lots to the payment of said judgment. On appeal to the appellate court of the fourth district, that decree was affirmed, and appellants now bring the record to this court.

One ground of reversal insisted upon is that the representatives of Gesch W. Elsen, one of the judgment debtors, and also one of the grantors in the grantors in the alleged fraudulent conveyance, were necessary parties to the bill. We think the point is well taken. While the bill shows that the said Elsen had but a life-estate in the lots conveyed, and upon her death Johnson and Fredericka Nolan would have become the absolute owners thereof, and therefore the decree prayed for would affect no interest of hers in the property, it also shows that she was a joint grantor in the deed sought to be vacated. That deed, as appears from the evidence, was a deed with covenants of title, by which the grantor's John T. Johnson, Gesch W. Elsen, and Fredericka Nolan jointly conveyed to Thomas Nolan the lots in question. It was expressly held by this court in Spear v. Campbell, 4 Scam. 426, that in a bill like this the judgment debtor and grantor in the alleged fraudulent conveyance was a necessary party, and it was then said: ‘The payment of judgments recovered against him was sought to...