Wing v. Goodman

• Decision Date: 30 September 1874
• Citation: 1874 WL 9209,75 Ill. 159
• Parties: WILLIAM G. WING et al.v.ESTHER GOODMAN.
• Court: Illinois Supreme Court

75 Ill. 159

1874 WL 9209 (Ill.)

WILLIAM G. WING et al.

v.ESTHER GOODMAN.

Supreme Court of Illinois.

September Term, 1874.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was a bill in chancery, filed by Esther Goodman, against William G. Wing, Ellen M. Lyford, (formerly Bickford) Noah G. Lyford, and Oliver Fellows, to enforce a vendor's lien. The material facts of the case appear in the opinion.

Messrs. SHUFELDT, BALL & WESTOVER, for the appellants.

Messrs. PERKINS & TRUMAN, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by Esther Goodman, a married woman, on the 10th day of June, 1868, in the Superior Court of Cook county, against Ellen M. Bickford, William G. Wing, and Oliver Fellows, to enforce a vendor's lien on a certain lot in the city of Chicago, which was sold and conveyed by appellee to Ellen M. Bickford.

In August, 1865, the title to the property was in Ellen M. Bickford, who resided in the State of Maine, but it was owned and controlled by William G. Wing; the property was purchased of Wing for $3,500, and duly conveyed to appellee.

At the same time, Wing was engaged in trade in Chicago, and had on hand a stock of wines and liquors. The business was conducted in the name of Ellen M. Bickford, but the goods were really owned by Wing.

On the 12th of September, 1865, appellee conveyed the lot to Ellen M. Bickford, on a contract, as she claims, made with Wing, by which she was to receive $3,700 for the property; on the other hand, Wing claims that the property was paid for by a sale of the stock of wines and liquors to Richard Goodman, the husband of appellee.

Upon a hearing of the cause on the evidence, the court entered a decree for appellee and ordered a sale of the premises to pay the purchase money.

The appellants, Wing and Bickford, have prosecuted an appeal to this court.

The appellants interposed a plea to the bill, in which it was alleged that, before the commencement of the suit, complainant had made and delivered a quitclaim deed of all her right and interest in the premises to one Miller. The court, upon argument, overruled the plea, and this is the first question presented by the record for consideration.

At the time the deed mentioned in the plea was executed, appellee had no title to the premises to convey, and it is clear no estate in the land passed by the deed.

A vendor's lien cannot be conveyed or even transferred, by contract.

It was held by this court, in Richards v. Leaming, 27 Ill. 431, that the right of this lien is confined to the person of the vendor alone, and that it was not assignable. See, also, Keith v. Horner, 32 Ill. 524.

The deed set up in the plea had no effect on the vendor's lien, and the plea was properly overruled by the court.

The appellants also filed a cross-bill, in which it was alleged, among other things, that the property in controversy was not the separate property of Esther Goodman, but was that of her husband; that on the 5th day of September, 1865, Esther and Richard Goodman bought the goods mentioned in the answer for $4,254.85, and gave a deed of the lot for $3,500, and that Richard paid the balance of the purchase price of the goods, and that the goods had not been otherwise paid for, and should the lien be enforced, the price of the goods would be lost. The prayer of the cross-bill was, that Richard and Esther Goodman be made parties defendant, ruled to answer, and for relief according to the facts.

A demurrer to the cross-bill was filed, and sustained by the court, and the cross-bill dismissed.

The object of a cross-bill is to enable a defendant to obtain affirmative relief, which cannot be had under an answer.

If all the allegations of appellants' cross-bill were true, it is difficult to perceive what affirmative relief could have been given.

If the allegations of appellants' cross-bill had been proven, such would have been a complete defense to the case made by appellee in her bill and would have defeated a recovery, but no affirmative relief was required and none could have been given. It is true, the prayer called for affirmative relief, but there were no charges in the bill under which evidence could have been introduced upon which to base a decree.

In Jones v. Smith, 14 Ill. 231, it is said: A cross-bill is proper whenever a defendant has equities arising out of the same subject matter which entitle him to affirmative relief which he cannot obtain in the original suit.

The equities of appellants, as disclosed by this record, will be searched for in vain, that cannot be adjusted in the original suit under the issues made by the bill and answer.

The demurrer was, therefore, properly sustained to the cross-bill.

It is next urged by appellants that the bill cannot be maintained in the name of appellee alone, that her husband should have brought the suit in his own name, or at least have joined with appellee, and that it was error to allow the husband to testify for appellee, his wife.

If the property sold by appellee can be regarded or treated as her separate property, it necessarily follows the bill was properly brought, and the testimony of the husband was admissible

It appears from the evidence that prior to 1861, appellee, when she was married, was possessed of money which came from her parents. After the marriage this money was recognized and treated by the husband as the property of the wife. At times she invested it herself, and on some occasions gave it to her husband to invest for her.

When the lot was purchased, the money was in bank, deposited in the name of the husband; he says she deposited it in his name; he drew a check when she made the purchase.

But in the view we take of the case it is immaterial whether the money that paid for the property at the time it was conveyed to appellee, was her separate property, or belonged to her husband.

The appellant, in detailing his version of the transaction, says Mr. Goodman told him that he would purchase the house, but that he agreed to buy one for his wife, the appellee, and that he would have this deeded to her.

At the time the property was conveyed to appellee it is not pretended that her husband was indebted, or in any manner involved; on the contrary, he appears to have sold a farm in the country, and was in good circumstances. As the husband of appellee was entirely free from debt, he had an undoubted right to purchase real estate and have it conveyed to his wife, and when this was done, without any fraudulent intent, the property conveyed would become the separate property of the wife, as much so as if purchased by her from money which she obtained before her marriage. Haines v. Haines, 54 Ill. 74; Thomas v. City of Chicago, 55 Ill. 406.

On appellant's own...