Roberts v. Hughes

• Citation: 25 Am.Rep. 270,81 Ill. 130,1876 WL 9934
• Parties: JAMES H. ROBERTSv.GEORGE R. H. HUGHES et al.
• Decision Date: 31 January 1876
• Court: Supreme Court of Illinois

81 Ill. 130

1876 WL 9934 (Ill.)

25 Am.Rep. 270

JAMES H. ROBERTS

v.GEORGE R. H. HUGHES et al.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. W. W. FARWELL, Judge, presiding.

This was a bill in chancery by James H. Roberts, for himself and others, creditors of the appellee Hughes, against Hughes, Jacob Hall Pleasants, and Richard H. Pleasants, to set aside a levy and sale of real estate on execution and to compel the execution of a power in trust, alleged to have been created by Hughes for the benefit of appellant and his other creditors. The court below sustained a demurrer to the bill.

Mr. W. C. GOUDY, for the appellant.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, for the appellees.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

Unless the levy and sale under the execution issued on the judgment in favor of Gookins and Roberts against Hughes, can be set aside, complainant can have no standing in a court of chancery, no matter what construction may be given to the instrument of the 24th of October, 1873, executed by Hughes to Pleasants, whether it be declared a simple power of attorney, revocable at the election of the maker, or a power of attorney coupled with an interest in the land itself upon which it was to operate, and therefore irrevocable. We are, however, of opinion that by no fair construction did that instrument pass the interest of the judgment debtor in the property to Pleasants. He then had an equity of redemption in the property, and that he still had, notwithstanding the execution of the power, whatever it was.

So long as that judgment remains satisfied it is clear complainant can have no interest in what he alleges is a trust created in favor of creditors of Hughes by that instrument, whatever it may be. Preliminary, therefore, to all others is the question, whether any cause exists for setting aside the levy and sale made on the execution, and declaring the satisfaction entered null and void, as having been induced by the fraudulent concealment of the trust in favor of creditors.

The execution was levied upon certain real estate, upon which the judgment debtor had previously given a mortgage to the Connecticut Mutual Life Insurance Company, to secure a sum of money by him borrowed of that company. At the sheriff's sale complainant became the purchaser of the property for the full amount of his debt, interest and costs, in satisfaction of the judgment. It stands admitted the property is not of sufficient value to pay the debt to the insurance company, and the amount bid upon it by complainant. But it is not perceived how that fact can change the decision. Under our statute the equity of redemption which the mortgagor has in the premises, is subject to levy and sale on execution, in precisely the same manner as unincumbered real estate. That is what complainant obtained by his purchase in this...