155 Ill. 434 | Ill. | 1895
delivered the opinion of the court:
Whatever may be said of the contention of counsel for appellant that the findings and decree of the circuit court go beyond the issue formed by the bill and answer, in the view we take of the evidence in this record that objection is not available to it as a ground of reversal. The allegations of the bill are, “that the said conveyance by Robert L. Rhea and wife to the said Phoebe Rhea, and the said conveyance by the said Phoebe Rhea and husband to the said Glenora B. Rhea, were not conveyances, and neither of them was a conveyance made upon a valuable consideration, but each of them was made with the intention, upon the part of all the parties to each of said conveyances, of defrauding your orator out of its said demand, and that no consideration was paid by the said Phoebe Rhea to the said Robert L. Rhea and his wife, or to either of them, for the said conveyance, nor was there any consideration paid by the said Glenora ■ B. Rhea to the said Phoebe Rhea and husband, or either of them, and that the said premises are now held by the said Glenora B. Rhea in trust for the said Robert L. Rhea, and for the purpose of preventing a levy and sale of the same under and by virtue of the said execution.” This allegation is directly and positively denied in each of the answers of the defendants. The burthen of proof was therefore upon the complainant to prove it, and if it failed to do so, its bill should have been dismissed, as recommended by the master.
We have carefully examined the evidence, and think it fails to sustain the bill. Whether the intention of the parties to the conveyances was to absolutely vest the title to the property in Phoebe Rhea, and afterwards in Glenora, or not, there is nothing in the evidence from which it can be fairly said that the intention was to defraud the complainant, or hinder and delay it in the collection of the debt for which it afterwards obtained judgment. Whether the deed from Robert L. to his mother was intended merely as a mortgage, to secure the payment of the $900 indebtedness due her from him, or as an absolute conveyance, it is clear, from the uncontradicted testimony of both parties, that such indebtedness was the moving consideration for those deeds, and that they were not prompted by the motive of defrauding complainant. A decree dismissing the bill at complainant’s cost would have been clearly justified by the proofs: The circuit court, however, construed the testimony most favorably to appellant, and decreed it relief accordingly, and it cannot be heard to complain of that decree merely Because it grants it relief not sought by the bill. The decree as to homestead was right. Quinn v. People, 146 Ill. 275, and cases cited.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
