18 Ill. 511 | Ill. | 1857
This was a bill of review. The decree sought to be reviewed and reversed, in connection with the whole record, discloses that Andrew Getzler, the husband of this complainant, in 1851, was seized in fee of the real estate mentioned, and was then largely indebted to Saroni and Archer, and others, defendants to this bill, and was insolvent; that in 1852 said Andrew, combining and confederating with Fitz and this complainant to hinder, delay and defraud his creditors, conveyed the property to Fitz, without consideration, and in trust, for this complainant, Ms wife, and her heirs; that in 1853 said Andrew absconded and departed the state, leaving tMs complainant and family in possession of the property at their residence, and who continue to occupy it; that in 1854 Saroni and Archer, and the other creditors named, defendants to that bill, sued out writs of attachment, at law, on their respective debts, against the estate of said Andrew, returnable to the same term of court, which were levied upon the property in controversy, and obtained judgments for their several debts against the property; that the court made an order that the proceeds of the property attached be applied to the satisfaction of the several judgments pro rata, and that the property could not be sold at law, under said judgments, for its value, in consequence of the fraudulent conveyance to Fitz. That record, as shown by this bill, further discloses that Saroni and Archer were complainants therein, and said Getzler and wife, said Fitz and the other creditors named, of Getzler, defendants therein; that upon due service and default the bill was taken for confessed; that the conveyance from Getzler to Fitz was decreed fraudulent and void as against the creditors of Geztler, complainants and defendants in that bill, and ordered to be sold by the master in chancery, and the proceeds thereof applied to the satisfaction of the several judgments in attachment, according to the order of the court (of law in relation to the apportionment) among the judgments in attachment ; that no order was made prior to that bill being taken for confessed, requiring or allowing this complainant, as a feme covert defendant joined with her husband, to answer' and defend separately; and that no notice was taken of any homestead exemption rights of Getzler or family in the property.
Other matters not appearing by the record of that proceeding, are alleged in this bill for cause of review and reversal, which we shall not notice, as this bill is filed as of right and without leave. In such case, the record of the proceeding sought to be reviewed, the bill, answers and decree, can only be looked into to see if there be error in the decree, and without regard to the evidence upon which the decree is based. Whiting v. Bank of United States, 13 Pet. R. 6; Perry v. Phillips, 18 Vesey, R., 178; Story’s Eq. Pl. Secs. 403 to 409,
The question, then, arising upon this record is, whether there is error apparent in the decree, appearing from inspection of the record, and without reference to the evidence.
Where married women are interested, the general rule is, that their husbands must be joined with them as defendants; and the husband may answer for himself and wife, unless her personal answer be required, or the court, on application, on her behalf, or that of her husband, or of some other party, for cause appearing, should otherwise order. Where the married woman has a separate or distinct interest in the subject matter of the bill, where her interest, is adverse to that of the husband, where the husband does not fairly make defense, or for other cause shown, the court will, on her application, order that she be at liberty to answer and defend separately.
So, for cause shown, or special circumstances appearing, the court will, on application of any party in interest, require such separate answer.
But it is not necessary in any case where the wife is made party defendant with her husband, that an order, without application for that purpose, be made allowing or requiring her to answer separately from her husband. Story’s Eq. PI. Secs. 71, 72; Leavit v. Gruger, 1 Paige R. 422; 1 Daniel’s Chy. Prac. 190, 191, 192, 193, 548 and 549; Lingan v. Henderson, 1 Bland. R. 421; 1 Smith’s Chy. Prac. 101, 102, 145,146,193, 194 and 254; Perine v. Swaine, 1 Johns. Chy. R. 24; Ferguson v. Smith, 2 ibid. 139; English v. Roche, 6 Porter (Ia.) 62.
The judgments in attachment were a proper foundation for equity interposition. The property having been conveyed to hinder and defraud creditors, the conveyance was void as against existing and subsequent creditors, and therefore, subject, in their favor, to attachment at law, the same as if no such conveyance had been made. Story’s Eq. Com. Secs. 353, 361; Greenway v. Thomas, 14 Ill. R. 271.
The party as to whom such conveyance is void, if the debtor is liable to attachment, may proceed by that remedy against the property so fraudulently conveyed, obtain his judgment and go into equity to remove the conveyance out of the way of his execution, or to subject the property to sale in satisfaction of the judgment, by decree in equity; and, if the property be not subject to attachment at law, being an equitable interest only, and personal service cannot be obtained on his debtor, so that he is without remedy at law for the establishment of his debt, he may, in the first instance, go into equity, establish Ms debt and have satisfaction out of the equitable interest. 14 Ill. R. 271; Russell v: Clark, 7 Cranch. R. 69; Ishmael v. Parker, 13 Ill. R. 324; Farnsworth v. Strasler, 12 ibid. 482; Miller v. Davidson, 3 Gilm. R. 518.
The wife, while the husband is living, cannot claim the benefit of the statute exempting homesteads from forced sale against the husband. It is for him, while living, to claim, if he chooses, the benefit of the statute, and if he does not the wife cannot enforce the exemption. Beside, the property being conveyed to hinder and defraud creditors, was good as against the husband, the grantor. He, therefore, could not claim the' exemption of the statute in regard to that property. Cassell v. Williams, 12 Ill. R. 328.
The demurrer to the bill of review was properly sustained, and the decree is affirmed.