244 Ill. 264 | Ill. | 1910
delivered the opinion of the court:
This was a bill in aid of an execution, and was not, in its strict sense, a creditor’s bill whereby the creditor seeks to satisfy his judgment out of some equitable estate of the defendant which is not liable to levy and sale under an execution at law. The only purpose of this bill was to remove a fraudulent conveyance out of the way of an execution. There is a clearly recognized distinction between these two classes of creditors’ bills. Under a bill in aid of an execution the creditor may proceed as soon as he obtains judgment and before execution has issued, while, on the other hand, before he may proceed under a creditor’s bill proper, he must exhaust his remedy at law by obtaining judgment, execution and the return, of the. execution nulla bona or unsatisfied in whole or in part. (Miller v. Davidson, 3 Gilm. 518; Dawson v. First Nat. Bank, 228 Ill. 577.) The relief afforded by a bill in aid of an execution is of a different character from that afforded by a creditor’s bill. Under the former the only relief granted is to set aside the encumbrances or conveyances therein specified as fraudulent, while under the latter any equitable estate of the defendant may be reached.
The defendants defaulted, and a final decree as to the matters averred in the bill was entered pro confesso. This decree concludes appellant as to all matters of fact properly averred in the bill, but he may on this appeal contest the sufficiency of the bill or assign as error that its averments do' not justify the decree. (Monarch Brewing Co. v. Wolford, 179 Ill. 252; Ames v. Holmes, 190 id. 561.) No facts are properly in issue unless charged in the bill, and no relief can be granted for matters not charged. The averments of a bill and the decree must correspond. It is fundamental that a party must stand or fall by the case made by his bill. (Rowan v. Bowles, 21 Ill. 17; Helm v. Cantrell, 59 id. 524; Langlois v. People, 212 id. 75; Stearns v. Glos, 235 id. 290.) The only issues raised by the averments of appellee’s bill were whether the judgment had been secured as charged and whether the deed from Joseph Me John to his father was without consideration arid fraudulent as to appellee, and the only relief sought was to have the deed declared fraudulent and set aside as to appellee, so that no obstacle would remain in the way of a levy and sale, under its execution, of the property described in the bill. There is neither averment nor prayer in this bill which could raise an issue on the rents, even if it be conceded that such issue could be joined with the main object of the bill. The master found that the facts alleged in the bill were true, that the conveyance from Joseph Mcjohn to his father was fraudulent as to appellee, and recommended that a decree be entered in accordance with the prayer of the bill and the master’s findings. To that relief, and no more, was appellee entitled under the averments of its bill.
Circumstances might arise where it would become proper and necessary for the chancellor to appoint a receiver, in cases of this kind, to preserve the property and prevent waste. In no event, however, would the court have power, under a naked bill in aid of an execution, to appoint a receiver either of the personal property, or of choses in action of the debtor not involved, or of the real estate involved and the “rents, issues, income and profit thereof,” as was done in this case. Counsel for the appellee and the chancellor evidently confused the purpose and scope of this bill with that of a creditor’s bill filed after the return of an execution unsatisfied and seeking to reach any equitable estate of the defendant debtor. No showing was made here in support of the application for the appointment of a receiver. The appointment was made upon the mere motion of appellee, evidently upon the theory that it was warranted by the unverified averments of the bill, without notice to the defendants, and without requiring appellee to give bond, as- provided by the statute. Had this been a proper case for the appointment of a receiver, it would be error to make the appointment without bond except for good cause shown and upon notice and full hearing. (Hurd’s Stat. 1903, chap. 23, sec. 53.) A defendant is entitled to notice of the application, though in default, where the appointment of a receiver is merely incidental to the main object of the bill, unless complainant gives the required bond.
We are of the opinion that the appointment of the receiver was improvidently made, and that the court erred in overruling the motion of appellant to discharge the receiver and set aside the order of his appointment and in dismissing the petition of appellant praying for his discharge.
Appellee contends' that if the appointment of the receiver was improper and the rents wrongfully collected, the fund is in court subject to the order of the chancellor, and should in equity be paid to it to apply on its judgment. In support of this position counsel rely upon the doctrine that a court of equity will take no step to save harmless a party detected in a fraudulent combination to cheat. That doctrine is too well recognized to require comment, but it cannot be invoked to warrant the granting of relief not prayed for, or relief in respect to matters which have in nowise been put in issue. Appellee had every opportunity to avail itself speedily of the aid of the court in setting aside the conveyance complained of. Its judgment against Mcjohn was obtained on September 17, 1902, and this bill was filed October 6 following. The defendants being in default, there wa.s nothing to prevent' appellee securing a final decree and a levy upon the real estate in question during the lifetime of its execution.
Appellant filed objections to the final report of the receiver, in which, among other items, he objected to the expenses incurred by the receiver and to the claim for services and commissions oh his part. This objection should have been sustained and the costs incurred by the appointment of the receiver and the fees and expenses of the receiver adjudged against complainant. Burrows v. Merrifield, 243 Ill. 362.
Various other questions have been raised, but we do not deem it necessary, in the view we take, to pass upon them.
The judgment of the Appellate Court and the decree of the superior court are affirmed except as to that part which orders and decrees the payment to appellee of the rents collected by the receiver during the lifetime of ¡Edward Mcjohn, and as to that the judgment of the Appellate Court and the decree of the superior court are reversed and the cause is remanded to the superior court, with directions to enter a decree that the rent money collected during the lifetime of Edward Mcjohn be paid to appellant.
Reversed in part and remanded, with directions.
