Root v. Cook

• Decision Date: 31 January 1876
• Citation: 1876 WL 9966,81 Ill. 260
• Court: Illinois Supreme Court
• Parties: JEWETT & ROOTv.JOHN COOK.

81 Ill. 260

1876 WL 9966 (Ill.)

JEWETT & ROOT

v.JOHN COOK.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding.

Mr. J. L. RAY, and Mr. G. W. GERE, for the appellants.

Messrs. LANGLEY & KNIGHT, for the appellee.

Mr. JUSTICE CRAIGdelivered the opinion of the Court:

The appellants, on the 16th day of February, 1875, brought an action of attachment, in the circuit court of Champaign county, against Wm. M. West, to recover a debt of $321.59.The writ was levied upon a stock of hardware in the possession of appellee.

Appellee came in under the statute, claimed to own the property attached, and interpleaded, upon which issue was taken.A trial was had without the intervention of a jury, which resulted in a judgment in favor of appellee for the property attached.

The only question that arises upon the record is, whether the finding of the court in favor of appellee, the claimant of the property, is sustained by the evidence.

The goods in question originally belonged to the defendant in the attachment, West, who was in trade in Tolono.West sold the goods, but at what time does not appear from the evidence, to a Mrs. Mary Stark, for $1000, and took her note in payment, due at a future day.Mrs. Stark took possession of the goods under her purchase.

On the 15th day of January, 1875, appellee, Cook, sued out an attachment against West for a debt of $330, alleging in his affidavit that West had fraudulently sold and conveyed his property, consisting of a stock of hardware, for the purpose of hindering and delaying his creditors.On the day following, the writ of attachment was levied on the hardware in question, which was then in the possession of Mrs. Stark.The sheriff took possession of the goods, and retained them until the 27th day of January, 1875, when one Baldwin, the father-in-law of West, as appears from the evidence, purchased the goods of Mrs. Stark, and gave her in payment the note of $1000, which she had given West for the goods, $50 in cash, and allowed her to retain $30 she had received on a sale of a portion of the goods.

On the same day that Baldwin purchased of Mrs. Stark he sold the goods to Cook for $800--$300 in Cook's account against West, for which Cook had attached the goods, and Cook's note for $500, due in ninety days.At the same time Cook released his attachment and took possession of the goods under the purchase, and retained them until they were attached by appellants on the 16th day of February following.

If the sale of the goods from West to Mrs. Stark was only colorable, and fraudulent, and that fact was known to appellee, and Baldwin was not a bona fide purchaser, then appellee's purchase would be tainted with fraud, and he could not hold the property as against the other creditors of West, although he was a bona fide creditor himself, and purchased the goods to secure his own debt.Waggoner v. Cooley,17 Ill. 239.

But this record fails to show that the sale to Mrs. Stark, or the subsequent sale to Baldwin, was fraudulent.

The evidence does not disclose that West was insolvent, or that he owed any debts except the one to appellants and another to appellee, unless the admissions of West and his wife are admissible, and we are...