Morrill v. Kilner

• Decision Date: 30 March 1885
• Parties: SAMUEL H. MORRILL et al.v.MARY KILNER.
• Court: Illinois Supreme Court

113 Ill. 318

SAMUEL H. MORRILL et al.

v.MARY KILNER.

Supreme Court of Illinois.

Filed at Springfield Mar. 30, 1885.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Moultrie county; the Hon. C. B. SMITH, Judge, presiding.

Mr. ANTHONY THORNTON, for the plaintiffs in error:

The ordinary consideration of five dollars, or even ten dollars, when the property is worth a great deal more, is merely nominal, and a deed upon such consideration is deemed voluntary. Ward v. Trotter, 3 Mon. 1; McKinley v. Combs, Id. 105; Cains v. Jones, 5 Greg. 250.

The facts indicate that the mother of the grantor was a mere trustee, and that the conveyance was made for the benefit of the grantor. This makes the deed void both as to then existing and subsequent creditors. Jones v. King, 86 Ill. 229.

The concealment of the transfer for nearly two years is a badge of fraud. Hungerford v. Earle, 2 Vern. 261; Hildreth v. Sands, 2 Johns. Ch. 48; Salmon v. Burnett, 8 Wheat. 229.

A deed made in anticipation of becoming indebted, for the purpose of defrauding creditors, and without consideration, is void against subsequent creditors. Moriarty v. Hoffman, 35 Ill. 558.

That the conveyance was made with the view of becoming indebted, may be inferred from the fact that the money was borrowed on the next day. Ridgeway v. Underwood, 4 Washb. C. C. 137; Am. Leading Cases, 71.

Mr. D. T. MCINTYRE, for the defendant in error, contended, from the evidence, that Walter Kilner, in purchasing the lots, acted merely as the agent of his aged parents, and that as the grantor was not the owner, he was not selling to his mother, and no consideration was necessary.

The conveyance being such as a court of equity would have compelled, can not be held fraudulent.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill brought by Mary Kilner to enjoin Samuel H. Morrill, one of the plaintiffs in error, from selling certain lots on a judgment in his favor against Walter B. Kilner and one Corbin, upon the ground that the property belonged to her, and that Walter B. Kilner had no title or interest whatever in the property. Morrill put in an answer to the bill, and also filed a cross-bill, in which he set up that Walter B. Kilner was the owner of the property, and that the conveyance which he had made to the complainant, his mother, was without consideration, and made with intent to defraud his creditors. On the hearing on the pleadings and evidence, the court rendered a decree in favor of the complainant, as prayed for in the bill, to reverse which Morrill and Corbin sued out this writ of error.

The property involved consists of four lots in the town of Sullivan, Moultrie county. Two of the lots were purchased on the 26th day of January, 1870, and deeded to Walter B. Kilner. The other two were bought on the 13th of January, 1871, and conveyed to the same party. The legal title to the lots remained in Walter B. Kilner until the 21st day of January, 1874, when, by deed of that date, he conveyed them to his mother, Mary Kilner. At the time this conveyance was made, Walter B. Kilner was indebted to different persons from $2500 to $3000, and remained so indebted until the last of December, 1875, when he made an assignment.

It is claimed by the complainant in the bill, that the property was purchased originally for her, and the purchase money was paid by her husband, George Kilner. There is some evidence in the record tending to sustain this view. Walter B. Kilner testified that the property was bought for the complainant, and his father, George Kilner, paid the purchase money. But the decided weight of the evidence seems to indicate that Walter B. Kilner made the purchase on his own account. When the purchase was made the deeds were taken to him. Mr. Smyser sold the property to Kilner. From his evidence it appears that he had sold lots 1 and 2 to one Ambrose, for $391.88. He being unable to pay the purchase money, gave up the lots to Smyser, and Walter B. Kilner then assumed the payment of the purchase money Ambrose had agreed to pay, and took the lots. The other two lots, 3 and 4, were sold to Kilner for $200, for which he gave his note, with interest at ten per cent. Kilner was at the time in the drug business, and according to Smyser's evidence, which was not contradicted, at least three-fourths of the $591.88 agreed to be paid for the property was paid by Walter B. Kilner out of his store. The remaining fourth Walter B. Kilner paid by turning out ...