107 Ill. 404 | Ill. | 1883
delivered the opinion of the Court:
This was a bill filed in the Knox circuit court, by defendant in error, to establish a right of homestead in a lot of ground, and to remove conveyances of the lot as fraudulent, and as obstructions to its sale on a judgment at law. She claims that she and her husband entered into possession of the property, and occupied it as a homestead until they went, temporarily, to Michigan; that whilst so in possession, William R. Greenman, then her husband, forged a deed from him and herself, conveying the property to his son George H. Greenman, who afterwards conveyed it to Bradley D., another son, and he conveyed to Sidney Rogers, without any consideration. Subsequently she filed a supplemental bill, alleging the recovery of a judgment against William R. Greenman for the sum of $2846.39, which was obtained in a suit in attachment, in which this land was levied on; that he was insolvent, and prayed that a receiver be appointed, and that the interest of defendant William R. Greenman be determined, and subjected to the payment of her judgment. It appears that after they had remained some time in Michigan, she filed a bill for a divorce from her husband, William R. Greenman, which was granted, and she was decreed alimony, and the custody of their child. On a hearing in the circuit court she was decreed a homestead in the property, half of the rents in the hands of the receiver, and the other half was required to be applied as a payment on the judgment, and to have the possession of the property, and that it be sold to satisfy the judgment, but subject to her homestead rights. The case is brought to this court to reverse that decree.
That there was a plan deliberately adopted by William R. Greenman, aided and assisted by his sons, to defraud defendant in error by hindering her in the collection of alimony, seems to be established beyond dispute. He agreed, on going to Michigan, that the stay should be temporary,—only until a farm was put in repair,—and they would then return to and live in Galesburg. This he never did. He also agreed that they would divide the rents of the house and lot in controversy, but they never did. The evidence clearly establishes that all the conveyances were fictitious, and without consideration. At the time each of these conveyances was made he was the only active person in their consummation, and unsought and unknown to Rogers he brought the deed from his son Bradley, and wished Rogers to execute a mortgage on the property to secure a fictitious sum as a consideration for the lot, but Rogers refused; but he nevertheless had the deed recorded, and Rogers swears that he paid, or agreed to pay, nothing for the lot. Notwithstanding these pretended sales, William R. was all the time in receipt of the rents, and controlling the property, and speaking of it as his own, and, so far as the evidence discloses, none of the pretended grantees ever exercised any-control over the .property, or claimed to own it. When William R. Greenman offered the deed to Rogers, and when the latter refused to sign a mortgage, Greenman told him to take the property, rent it, and sell it if he could. Rogers paid nothing, but he, at Greenman’s request, entered into an agreement to hold, rent and sell the property, if he could, for Bradley D. Green-man. Thus at the instance of William R. Greenman, who claimed to be his son’s agent, Rogers declared a trust, but, at the same time, Greenman declared that he placed the title in Rogers because he‘believed it would be -more safe. The evidence satisfactorily shows that the conveyance'to George H. Greenman was fraudulent; and without a corisideration being paid for the lot. The consideration named was $ 1000, as stated in the deed, and George, it is claimed, gave his note for the amount, when the evidence shows that he was without means, and it does not appear he had the slightest use for the property. The tenants remained in the property without any change, the father still collecting or controlling the rents, as he claims, as agent for George, but George doing or saying nothing in reference to the property. It remained to all appearances the same as it was before.
It is beyond belief, from the evidence before us, that this could have been a bona fide sale. It is true that the father and son swear it was, but their version of the matter is so incredible that it is difficult to give it credence, if it had not been opposed by the attending circumstances and other opposing testimony. The evidence proves the same of Bradley D. Greenman’s purchase from his brother George. He had no surplus means, nor does he show any reason for the purchase. On the contrary, he was constantly importuning his father for money to enable him to pay a considerable sum of money he owed on a farm he had purchased. Having no means, and being pressed for means to pay for and acquire title to his farm, it is incredible that he would further involve himself by purchasing this property. Nor is any reason shown why he should have conveyed to Sidney Rogers, and taken from him an agreement to rent or sell it, if he could. On the contrary, his father stated at the time that he had it so conve3red because he considered it more safe. Safer for whom? Surely not for Bradley, because the title stood in him, and by placing it in Rogers, without consideration, it could be no safer to him. But the property, if it belonged in fact to William R. Greemnan, might be safer to him, as the written declaration of trust in favor of Bradley was delivered to the father, and there is no evidence which we have been able to find that he ever delivered it to Bradley. William R. seems to have been in a position, if the property was sold, to receive the money, destroy the declaration of trust, and appropriate the price to his own use. Had it assumed the form of ordinary transactions, Bradley, the owner, would have given Rogers a power of attorney to sell and convey, or to have authorized him to sell, and for Bradley to have made the conveyance when a sale was made. It seems that William R. at all times retained the power to sell or have a sale made, and appropriate the money to his own use; and about the time his wife commenced her suit for a divorce, Rogers advised him to let his wife have the house and settle the matter, and asked him how he could prevent his wife from recovering .alimony, and he replied he “would fix that.” Neither of the sons seems to have given any attention to the property, but the father continued to act as owner, in its management, in receiving and ordering the disposal of the rents, and in making repairs. The sons acted with an incomprehensible indifference in the matter, if they were owners. We are unable to believe they ever, in fact, were,—that the whole was a contrivance to defraud defendant in error, by preventing her from collecting any alimony that might be allowed her on granting her a divorce. All the evidence,— even with the explanations given by the Greenmans, father and sons,—points unerringly to that conclusion. We find it impossible to believe these sales were bona fide, but are forced to the conclusion that they were all conceived and earned out with fraud and covin, and that the property should be subjected to the satisfaction of the judgment for alimony.
But to obviate that effect, it is claimed that the rights of defendant in error are barred by the statutes of limitation of 1835 and 1839. Title deducible of record from the United States government, and actual possession for seven years, are claimed to have been proved; also, claim and color of title, and possession and payment of taxes for seven years on the property. The questions of limitation, under these statutes, have heretofore related to adverse titles, and not as to fraudulent grantees combined or acting together to defraud creditors or persons holding legal demands. The statute was not made, nor was it ever designed to be used, for such iniquitous purposes. It was made to promote the great natural principles of justice, and not to promote and protect fraud and iniquity. Thus it is seen there was not laches. The Statute of Limitations does not strictly apply to cases in equity, but equity generally follows the law, and denominates the period that the statute requires to bar an. action, laches, that renders a demand stale.' But the fact that plaintiff in error William R. Greenman, and his sons, were guilty of fraud, estopped them from claiming a bar to the suit, as the fraud precluded him or his fraudulent grantees from relying on laches as a defence in equity. A mere verbal promise of his, that he would return, and they would use the lot as a homestead, could not create or pass to her a right to homestead. Nor did his- mere verbal promise to divide the rents and profits create a contract by which she .could sue and recover them. The mere naked verbal promise, without any consideration, can not confer such a right when made by a husband to his wife. The land belonged to him. The conveyance by Mrs. Hendricks to plaintiff in error and defendant in error, gave to the latter no interest in the property, because she had no title to convey. It neither gave her a homestead right nor the right to participate in the rents. It was therefore error to decree her homestead or rents under that deed. If it could be allowed her to claim homestead rights because her husband owned the property, she, by her long continued and present absence, forfeited the right. Nor did his promise, when they went to Miehigafi, to return and occupy the premises as a homestead, confer the right, .and we have seen that the promise to divide the rents did not authorize her to participate in them. The court below therefore erred in decreeing her homestead in the premises, and possession thereof, and also in decreeing that she was entitled to one-half of the rents in the hands of the receiver, or otherwise.
But it remains to determine what disposition shall be made of the rents in the hands of the receiver. Inasmuch as it is, a fund in the hands of the court, it must be disposed of by order of the court. Shall it be paid to plaintiff in error William R. Greenman, as the owner, in fact, of the property, or Bradley D., the apparent owner, or shall it be applied towards the payment of the judgment? The bill alleges that William R. Greenman is insolvent, and the property is insufficient to pay the judgment. This allegation is denied by the answers. Although the fund is in the hands of the court, still, to make it proper to be applied as a payment on the judgment, it should have appeared that the judgment could not be otherwise satisfied. This is not shown. For aught that appears this property may be ample to satisfy the judgment, and Greenman may be abundantly solvent. The court should have decreed the payment of the rents to him. But in so far as the decree finds Mrs. Greenman holds a homestead title in the property, and is entitled to its possession, and that she is entitled, in her own right, to one-half of the rents, the decree in that respect is reversed, and it is in all things else affirmed. It is, however, decreed that each party pay one-half of the costs of this court.
Decree modified.