Schroer v. Pettibone

• Decision Date: 13 June 1896
• Citation: 45 N.E. 207,163 Ill. 42
• Parties: SCHROER v. PETTIBONE et al.
• Court: Illinois Supreme Court

163 Ill. 42

45 N.E. 207

SCHROER

v.PETTIBONE et al.¹

Supreme Court of Illinois.

June 13, 1896.

Appeal from appellate court, First district.

Bill by Conrad E. Schroer against William H. Pettibone and others in aid of a special execution issued on a judgment rendered in an attachment proceeding. From the affirmance of a judgment overruling a demurrer to defendant Pettibone's cross bill (58 Ill. App. 436), complainant appeals. Affirmed.

Stirlen & King, for appellant.

H. F., F. A. h. f. p/ennington, for appellees.

CARTER, J.

Appellant filed his bill in equity in the superior court of Cook county in aid of a special execution issued upon a judgment rendered in an attachment proceeding against certain lands in Cook county, alleged in the bill to belong to appellee, while the legal title thereof was vested in appellee's wife, Mary M. Pettibone. The bill set up the recovery of the judgment in rem in the attachment proceeding, for the sum of $3,000, upon constructive service, and the issuing of the execution; alleged that the real estate was purchased with the money of appellee, and the title placed in the name of appellee's wife, for the fraudulent purpose of hindering and delaying the complainant and other creditors of appellee in the collection of their debts. Appellee and his wife, Mary M. Pettibone, made defendants to the bill, appeared and answered, denying the material allegation of the bill, and alleged that the real estate in question was purchased with the moneys of the wife, and was her property, and that appellee had no interest therein. Replication was filed by complainant, and appellee then filed his cross bill, in which he attacked the judgment rendered in the attachment proceeding as having been obtained by fraud, and upon a false and fictitious demand. Complainant in the original bill filed a demurrer to the cross bill, which was overruled by the court; and, appellant abiding by his demurrer, a decree was rendered in compliance with the prayer of the cross bill, setting aside and canceling the judgment of $3,000, and dismissing the original bill. The appellate court affirmed that decree, and we are asked by the appellant, on this appeal, to reverse the judgment of the appellate court and the decree of the circuit court.

It appears from the cross bill that, prior to the attachment suit, appellant exchanged two lots in Pennock, Cook county, which were subject to a mortgage of $1,500, with appellee, for 12 lots in Nickerson, Kan.; that the abstracts of title showed that the title to the two lots was clouded by a creditors' bill for $50; and that there was $100 interest due on the mortgage. Appellee loaned appellant $100, with which to pay this interest, and took appellant's note for that amount, for its repayment. It was then agreed that, to secure the payment of the note and the removal of the cloud, appellee, as to 1 of the 12 lots in Kansas, should only deliver the deed...