| Ill. | Nov 11, 1887
delivered the opinion of the Court:
This was a bill in chancery, filed in August, 1882, in the ■circuit court of Kankakee county, by Harriet L. Gay, to enjoin the sheriff, and Mace Gay, the judgment creditor, from further proceedings under a levy of an execution which had been made upon the interest of Blkanah Gay, the husband of the complainant, in the lands described in the bill.
In 1853, Harriet L. Gay purchased the real estate described in the bill, with money realized from the sale of property devised to her by her father, she, at that time, being the wife of Blkanah Gay, and there being then two children of their marriage living. In July, 1857, Blkanah Gay became indebted to one A. T. Gay by a purchase of a cargo of lumber, a portion of which was used in improving the land in question. Subsequently, Blkanah Gay gave to A. T. Gay a promissory note for the balance then due on the said indebtedness, and this note was afterward transferred by A. T. Gay to Mace Gay, the principal defendant in the bill. This note was subsequently given up to Blkanah Gay, who gave another note as evidence of the same indebtedness. In 1875 this last note was put in suit by Mace Gay, and judgment obtained thereon by him, against Blkanah Gay. An execution issued thereon "within one year after its rendition, was returned no property found. In 1882, within seven years after the rendition, of the judgment, an alias execution was issued, under which the .levy in question was made. By deed dated August 25, 1857, Elkanah Gay joined with his wife in conveying the lands in ■question to one Jesse P. Bishop, in trust, for the benefit of Harriet L. Gay, stating in the trust deed that it was made for the purpose of protecting the property from the debts of Elkanah Gay, “heretofore or hereafter to be contracted.” One George Gay Was afterward made trustee in place of Bishop, and in 1874, George Gay and Bishop conveyed all their interest in "the land to Harriet L. Gay. Mace Gay filed his cross-bill, .asking that the deeds from Elkanah Gay and wife to Bishop, from Bishop to George Gay, and from George Gay and Bishop to Harriet L. Gay, be set aside, and declared null and void as to him. A demurrer to the cross-bill was sustained, and on final hearing the relief prayed by the original bill was decreed.
There is some evidence going to show that the indebtedness for lumber, on account of which, in part, the judgment was -rendered, was contracted subsequently to the making of the trust deed by Elkanah and his wife to Bishop, on August 25, 1857, but the great preponderance of evidence is, that it was ■contracted on July 28,1857. As against such prior indebtedness, then, the subsequent trust deed made by Elkanah Gay and his wife to Bishop, on August 25,1857, being a voluntary conveyance, without consideration, was invalid, as respected any interest of Elkanah Gay in the land. Elkanah Gay had, at that time, an estate by the curtesy in this land of his wife. (Wolf v. Wolf 67 Ill. 55" date_filed="1873-01-15" court="Ill." case_name="Wolf v. Wolf">67 Ill. 55; Lang v. Hitchcock, 99 id. 550.) This estate of curtesy, initiate was liable to seizure and sale on execution against the husband. Shortall v. Hinckley, 31 Ill. 219" date_filed="1863-04-15" court="Ill." case_name="Shortall v. Hinckley">31 Ill. 219; Jacobs v. Rice, 33 id. 369; Lang v. Hitchcock, supra.
As Elkanah Gay makes the statement in his testimony that he joined with his wife in the trust deed to Bishop, in consequence of an agreement with Bishop, who was the trustee of the property in Ohio, from the avails of which this land was purchased, it is urged that the trust deed to Bishop was not, therefore, wholly voluntary,—that it was made in pursuance-of a duty which a court of equity would enforce. Without stopping to inquire as to the effect of any agreement in such respect, the agreement spoken of by Elkanah Gay is too vague and unsatisfactory to allow to it any influence in controlling the present decision. It does not appear when the agreement was made or what it was,—that it was anything more than an agreement on Gay’s part to unite with his wife in this deed of trust, made at, or recently before, the time of its execution. This trust deed to Bishop was made nearly four years after the purchase of the land by Mrs. Gay. Had there been any such agreement then existing, at the time of such purchase, we must suppose the deed would have been made to Bishop, as trustee, instead of to Mrs. Gay in her own name.
The trust deed to Bishop, although containing recitals in the matter, as, that she theretofore became possessed, in her own right, of certain moneys accruing to her by inheritance, with which the real estate was purchased, etc., makes no-mention of such agreement; nor is any mention of it made in the bill, or in the testimony of Mrs. -Gay. We do not find anything in the agreement testified to by Elkanah Gay, or any other circumstance in the case, to repel the legal presumption of fraud in respect to existing debts, which arises from the making of a voluntary settlement.
Laches is relied upon in support of the decree. The voluntary conveyance of the land to Bishop, as trustee, was null and void, as we find it to be, as against the judgment creditor here, and he had the right to take out execution upon the judgment, and levy upon the land, the judgment not being barred by any statute of limitations. The objection of laches' has no-application as against the rightfulness of the levy of the execution.
There was a mortgage on the land of $1000, and it is claimed that the land conveyed was not worth more than the homestead right above the mortgage on it. We consider that the testimony fairly shows the land was worth at least $3000.
The decree will he reversed, and the canse remanded for further proceedings in conformity with this opinion.
Decree reversed.