Miller v. Payne
| Decision Date | 31 July 1879 |
| Citation | 4 Ill.App. 112,4 Bradw. 112 |
| Parties | VALENTINE MILLER ET AL.v.DELIA L. PAYNE ET AL. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of Madison county; the Hon. GEO. W. WALL, Judge, presiding. Opinion filed August 1, 1879.
Messrs. METCALF AND BRADSHAW, for plaintiffs in error; in support of the relief sought by the bill of complaint, cited Mitchell v. Byrns, 67 Ill. 522; Jassoy v. Delius, 65 Ill. 469; Hocket v. Bailey, 86 Ill. 74.
As a bill to set aside a fraudulent conveyance it is proper, without showing insolvency: Miller v. Davidson, 3 Gilm. 518; Weightman v. Hatch, 17 Ill. 281; Newman v. Willets, 52 Ill. 98 Lewis v. Lanphere, 79 Ill. 187.
Deed from the husband to the wife can only be sustained by showing that there was an adequate consideration and no creditors, or if there were creditors, that he had reserved other property to pay them: Mitchell v. Byrnes, 67 Ill. 522; Jassay v. Delins, 65 Ill. 469; Hocket v. Bailey, 86 Ill. 74; Miller v. Davidson, 3 Gilm. 518; Weightman v. Hatch, 17 Ill. 281; Newman v. Willets, 52 Ill. 100; Lewis v. Lanphere 78 Ill. 187; Sweeney v. Damson, 47 Ill. 450; McLourie v. Partlow, 53 Ill. 340; Pratt v. Meyers, 56 Ill. 23; Boies v. Henry, 32 Ill. 130; Moritz v. Hoffman, 35 Ill. 553; Reed v. Noxon, 48 Ill. 323; Monell v. Sherrick, 54 Ill. 269; Thompson v. Willor, 86 Ill. 197.
Mr. G. B. BURNETT and Messrs. IRVIN & SPRINGER, for defendants in error; that all deeds are presumed to be upon a valuable consideration, cited Stone v. Duval, 77 Ill. 475.
Fraud must be proved: Wright v. Grover, 27 Ill. 426.
Want or failure of consideration must be proved; Mitchell v. Deeds, 49 Ill. 416; Stacker v. Watson, 1 Scam. 207; Topper v. Snow, 20 Ill. 434.
An answer denying allegations in the bill, must be overcome by proof: James v. Bushnell, 28 Ill. 158; Reese v. Darby, 4 Scam. 162; Munson v. Miller, 66 Ill. 380.
Waiver of homestead right was a valuable consideration: Patrick v. Patrick, 77 Ill. 555.
Valentine Miller and Jacob Stroutzenburg filed a bill in the Madison Circuit Court against Henry Payne, and Delia Payne, his wife. The bill alleged, in substance, that at the August term, 1878, of the court, said Miller recovered a judgment for $367.83, and said Stroutzenburg a judgment for $392.18, against Henry Payne, upon which judgments executions were issued, and returned “no property found.” It was also alleged the debts were contracted, one in 1873 and the other in 1874, at which times said Henry Payne was the owner of two hundred acres of valuable lands, situate in Madison county, and described in the bill. That May 10th, 1878, Payne and wife borrowed $3,000 from one Barnsback, to secure which they gave a deed of trust on all of said lands except one tract containing twenty-three acres, and that they still retain said sum, or the greater part thereof, and purpose to defraud their creditors out of the same. That May 29th, 1878, said Henry Payne gave a second deed of trust on the mortgaged lands to one Irvin, as trustee, to secure certain specified creditors whose debts amounted to $2,264.10; and that on the 10th day of July, 1878, said Henry Payne deeded said mortgaged lands to Prickett and Gerke, for the expressed consideration of $6,474. That said Henry Payne, on the 10th day of May, 1878, for the purpose of defrauding complainants out of their said claims, made and delivered to his wife, Delia L., a deed to the twenty-three acre tract of land, for the pretended consideration, as expressed in the deed, of $1,500. That the premises deeded to Delia L. were and are worth $2,500, there being a dwellinghouse and improvements thereon; that Henry Payne was the owner of the premises when the debts to complainants were contracted, and that they gave him credit on the faith of his being the owner thereof. That neither said sum of $1,500, or any other sum was paid to said Henry Payne by said Delia L. Payne at the time of the execution of said deed, and that the same was made without any consideration, and to delay, hinder, and defraud complainants. Answers under oath were expressly waived. The joint and several answer of the defendants neither admitted or denied the recovery of the judgments or the issuing and return of the executions, as averred in the bill. It denied that Henry Payne was, at the time he contracted the indebtedness to complainants, the sole owner of the lands, but claimed Delia L., at and prior to that time, was the owner of an equitable interest therein. The answer stated, that about the year 1863 the wife had $1,700, which was her own separate property, and loaned the same to her husband for the purpose of paying off debts which he owed for the purchase money of said real estate, and that he applied $500 of said sum in payment of a debt against the twenty-three acre tract, and $1,200 in payment of indebtedness against the other lands. The answer further stated: “And the said Henry Payne, being indebted to respondent, Delia L. Payne, for said sum of seventeen hundred dollars, and interest thereon, in part payment of said indebtedness, and in further consideration of Delia L. Payne having joined in the execution of the deeds of trust in said bill mentioned, and of the deed to Prickett and Gerke herein mentioned, releasing her homestead and right of dower in the lands in said deeds of trust and deed mentioned and described, for the benefit of the creditors of said Henry Payne, the said Henry Payne did execute, acknowledge, and deliver to said Delia L. Payne a deed conveying to her the twenty-three acre tract of land mentioned in said bill.”
The answer also denied that the deed was made to delay, hinder or defraud creditors, but claimed they were benefited by the arrangement, which secured the release of the dower and homestead rights of the wife in the remaining lands. The defendants denied they still had the money received from Barnsback, but claimed it had all been applied to the payment of debts against Henry Payne. They also denied that the land conveyed to Delia L. was worth $2,500, or that complainants gave credit to Henry Payne on the faith that he was owner of said premises. It was also claimed the rights of complainants as creditors were in no sense superior to the rights of Delia L. Payne. A replication was filed to this answer. The cause was afterwards heard on bill, answer, replication and proofs, and the bill was dismissed at the cost of the complainants.
So far as the $3,000 received from Barnsback is concerned, it is clear complainants were entitled to no relief. True the defendants conceded and the proofs showed the receipt of the money; but it was also shown $812 of it was paid on a debt due one Jarvis, and the only information the court had in regard to the remainder of the sum, was the statement in the answer that it had all been honestly appropriated in payment of debts, and that none of it was in possession or under the control of defendants. The case then stood as to this remainder, upon a simple allegation in the bill, which was denied in the answer. An allegation must be either admitted or proved before it can be acted upon by the court as true. It is difficult to see, under the circumstances of the case, what relief could possibly have been granted complainants as to this money. The mere fact of its receipt in May, 1878, especially when defendants were not even called upon by the bill to disclose when, how, or to whom they had disposed of it, raises no presumption that the answer was untrue, and that the money was in their hands and under their control at the time the cause was submitted in the following December.
The principal question involved in the case was, whether the deed to Delia L. Payne was fraudulent and void as against the claims and judgments of complainants. It may readily be admitted that fraud will never be presumed; that where a want of consideration is alleged, it must be proved; and that the recital in a deed of a consideration is sufficient evidence it was made for a valuable consideration until the opposite is made to appear. It is also true, the burden at the hearing was upon the complainants to prove all material allegations of the bill not admitted by the unsworn answer. No point is or can be made, that there was, as to this branch of the case, a defect in the proofs of complainants upon any of the averments of the bill, unless it be upon the allegations that the deed from Henry Payne to his wife was a voluntary deed, made without any consideration, and was fraudulent. It is urged that as the bill charges a want of consideration, and this charge is denied in the answer, and that as there is no evidence in the record to show there was no consideration, the decree was necessarily for the defendants.
If the premises claimed were once conceded, the conclusion suggested would irresistibly follow. But that the premises assumed have foundation...
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