Sawyer v. Moyer

• Decision Date: 26 March 1884
• Citation: 109 Ill. 461,1884 WL 9812
• Parties: ABIAL B. SAWYER et al.v.SOLOMON MOYER et al.
• Court: Illinois Supreme Court

109 Ill. 461

1884 WL 9812 (Ill.)

ABIAL B. SAWYER et al.

v.SOLOMON MOYER et al.

Supreme Court of Illinois.

Filed at Springfield Mar. 26, 1884.

APPEAL from the Circuit Court of Tazewell county; the Hon. N. M. LAWS, Judge, presiding.

Mr. A. B. SAWYER, Messrs. COHRS & RIDER, and Mr. WM. DON MAUS, for the appellants:

In so far as the bill seeks to remove and set aside the alleged fraudulent conveyances by which Mary Moyer is clothed with the apparent title to the land sought to be charged specifically with the payment of complainant's judgments, the bill is exhibited, and should be maintained as a creditor's bill, filed under the general equitable jurisdiction of a court of chancery in this State, according to the uniform practice therein. Story's Eq. Jur. sec. 1481; Story's Eq. Pl. sec. 537.

Where it is charged that the debtor has made a fraudulent conveyance, the judgment creditor may, before execution, file a bill to set aside the conveyance. Wightman v. Hatch, 17 Ill. 286; Newman v. Willetts, 52 Id. 99; Shufeldt v. Boehm et al. 96 Id. 560; Greenway v. Thomas, 14 Id. 271; Dewey v. Eckert, 62 Id. 218; Lewis v. Lanphear, 79 Id. 187; Miller v. Davidson, 3 Gilm. 518.

Or the creditors may have the land sold, and the purchaser, if there is no redemption, may have the fraudulent conveyance set aside in chancery. Brown v. Niles, 16 Ill. 385; Hunt v. Blodgett, 17 Id. 583; Letcher v. Morrison, 27 Id. 209.

We submit that the parties' statements, their manner and spirit in testifying, their inconsistencies, their unnatural acts, and, indeed, every act and fact relating to the conveyances to Mary Moyer, point to but one irresistible conclusion, and that one is, that the conveyances are fraudulent.

Messrs. PRETTYMAN & DOUGHERTY, for the appellees:

Where no discovery is obtained, the answer denying the matter in the bill, the bill, so far as it seeks relief on a discovery, must be dismissed. If fraud is also charged, and other relief sought beside a discovery, the bill may be retained. Philadelphia Fire Ins. Co. v. Central National Bank, 1 Bradw. 357; United States Ins. Co. v. Central National Bank, 7 Id. 428; Martin v. Dryden, 1 Gilm. 210.

The answer of a respondent to a bill in equity praying for a disclosure, only, is conclusive upon the complainant as to the truth of its statements, and a mere inadequacy of consideration is no ground for setting aside a deed in equity, when the stipulated consideration is actually paid or received. Pollard v. Lyman, 1 Day, 156.

The bill charges specific frauds upon the defendants. The answers, severally, positively deny them. The burden of the proof is upon the complainants. Fraud is never to be presumed, but must be proved by the party alleging it. Wright v. Grover, 27 Ill. 426.

A party must support his bill by proof, and he is supposed to know the character of the witnesses he adduces, and having thus presented them to the court, the law will not permit him afterwards to impeach their general reputation for truth, or to impugn their credibility by general evidence tending to show them to be unworthy of belief. 1 Greenleaf on Evidence, sec. 442.

A party can not impeach a witness called by him, by proving that he had made contrary statements out of court. Griffin v. Chicago, 57 Ill. 317; Chambers v. Warren, 13 Id. 321.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was a creditor's bill, and was brought by Abial B. Sawyer, and other judgment creditors of Solomon Moyer, against Solomon Moyer, Henry Moyer, Sarah Ann Moyer, and Mary Moyer, in the circuit court of Tazewell county. The recovery of judgments at law in favor of complainants, against Solomon Moyer, is set forth in the bill, and then it is alleged that at the time, and after the indebtedness to complainants was contracted, Solomon Moyer was the owner of valuable real estate in Tazewell and McLean counties, and that afterwards, but before complainants recovered their judgments at law against him, Solomon Moyer conveyed a part of his real estate to Henry Moyer, and another part to Sarah Ann Moyer; that subsequently Henry Moyer and Sarah Ann Moyer conveyed such real estate to Mary Moyer, and that such conveyances were all colorable, and made without any valuable consideration, with a view to hinder and delay the creditors of Solomon Moyer in the collection of their claims against him. It is further alleged that Solomon Moyer has now no other property, real or personal, subject to levy and sale on execution. Answering, defendants admitted the recovery of the several judgments mentioned in complainants' bill, against Solomon Moyer, and also the several conveyances as alleged in the bill, but assert the good faith of the transactions, and that the conveyances were all bona fide sales, for a full and valuable consideration, and with no view to hinder and delay the creditors of Solomon Moyer in the collection of their just claims against him. Replications were filed to the answers of defendants, and the...