Peck v. Dyer

• Citation: 35 N.E. 479,147 Ill. 592
• Parties: PECK et al. v. DYER et al.
• Decision Date: 26 October 1893
• Court: Supreme Court of Illinois

147 Ill. 592

35 N.E. 479

PECK et al.

v.DYER et al.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from appellate court, second district.

Bill by Wilber S. Peck, Frank A. Peck, and Charles A. Shafer against Nichols D. Dyer and Mary E. McBride, executors of Otis Hardy, deceased, Edward C. Hagar, and Ann Jane Fox, to set aside certain instruments as fraudulent. There was a decree setting aside the instruments, but declaring a mortgage held by said executors a prior lien to the judgments held by complainants. This decree was affirmed by the appellate court. Complainants appeal. Affirmed.

J. K. Wilson, for appellants.

Geo. S. House, for appellees.

WILKIN, J.

On the 12th of January, 1886, appellants obtained five judgments in the circuit court of Cook county against one Osmond Fox, and on the same day caused executions to issue thereon, directed to the sheriff of Will county. On the next day he levied them on the lands in controversy, and filed certificates of the levies at 12:40 o'clock P. M. of that date. Osmond Fox was at that time in possession of the premises, and held a contract of purchase for the same from William A. Strong and wife, dated January 24, 1878. His contract provided that he should be entitled to a deed upon the payment of $2,400, and that, in default of his making payment of that sum according to his two certain promissory notes, the vendors might declare the contract forfeited. This contract was recorded in the recorder's office of Will county at the time of the levies above mentioned. Fox had made valuable improvements upon the land after his purchase, and before the levies, valued at $11,000. On the same day the levies were made, but after the hour of filing the certificates thereof, the First National Bank of Joliet recovered a judgment against Fox for $2,525 and costs of suit in the circuit court of Will county. On the 17th of April, 1886, Strong delivered to Fox a declaration of forfeiture of the above-mentioned contract, and gave him his notes. Strong, at the same time, filed a copy of this declaration of forfeiture for record in the recorder's office of Will county, and the same was duly recorded. On the same day he and his wife conveyed the premises by warranty deed (the consideration named in the deed being $2,500) to Frederick W. Woodruff, who was at the time president of the above-named bank. On the same day, Woodruff and wife, by special warranty deed, conveyed the same to Ann Jane Fox, wife of Osmond Fox, in consideration of $5,000, evidenced by five $1,000 promissory notes of that date, each payable in three years, with 8 per cent. interest, payable semiannually, signed by Mrs. Fox, and payable to Woodruff, secured by a trust deed upon the premises conveyed. Mrs. Fox took and remained in possession of the land from the date of her deed to the filing of this bill. The circuit court found that the notes given by her were designed to pay the amount due Strong, and the judgment of the bank. Woodruff assigned these notes to Otis Hardy, appellees' intestate, before maturity. Appellees insist that this transfer was made on the 21st day of October, 1886, but appellants contend that there is an absence of proof on this subject, and therefore it must be assumed that it was made at the date of the notes. On the 17th of April, 1888, appellants filed their bill in chancery to set aside the declaration of forfeiture by Strong against Osmond Fox, and the deeds by the former and his wife to Woodruff, and by Woodruff and wife to Ann Jane Fox, as fraudulent and void as against their said execution levied. They also charge in their bill that Ann Jane Fox holds the premises in question in trust for her husband, Osmond Fox, but concede that the amount actually due the Strongs from Osmond Fox on the contract of purchase is a prior lien to their ...