| Ill. | Nov 1, 1897
delivered the opinion of,the court:
It appears from the testimony that a deed was made to Alexander Keady for lot 6 and the south half of lot 5, in block 2, of Fell Park addition to the town of Normal, McLean county, and duly filed for record in May, 1891. It is claimed by plaintiffs in error in this court that the deed should have been made to Cora Keady, the wife. The title stood in Alexander Keady until September 27, 1893, when Alexander Keady conveyed to his brother, Samuel B. Keady, who on November 30, 1893, conveyed to Cora Keady, for the purpose, as is admitted, of putting the title in her. When the indebtedness to John L. White was incurred, in July and August, 1891, the title stood in Alexander Keady, and continued to stand in him until September, 1893. Suit was commenced against Alexander Keady in January, 1894, and shortly after, January 19, 1894, the deed to Cora Keady was placed upon record. The testimony shows that Mrs. Keady knew the deed had been made to her husband from the time it was made, in May, 1891, until the house was completed, in September, 1893. The title thus standing in Alexander Ready’s (her husband’s) name, with her knowledge, would make the property liable for. his debts. White being a creditor at the time of the conveyance, it was fraudulent in law as to him. (Lowentrout v. Campbell, 130 Ill. 503" date_filed="1889-10-31" court="Ill." case_name="Lowentrout v. Campbell">130 Ill. 503.). It is admitted no consideration passed when the deeds were executed, and that the purpose was to place the title in Mrs. Cora Ready. A mere voluntary conveyance from a husband to a wife is null and void as against the judgment creditor, as held by this court in Gay v. Gay, 123 Ill. 221" date_filed="1887-11-11" court="Ill." case_name="Gay v. Gay">123 Ill. 221, and Marmon v. Harwood, 124 id. 104.
Plaintiffs in error contend that the ante-nuptial agreement set up in the answer was a sufficient consideration. The agreement was a mere verbal agreement, and void by the Statute of Frauds. The first section of chapter 59 of the Revised Statutes of Illinois, entitled “Frauds and Perjuries,” among other things declares: “No action shall be brought whereby to charge * * * any person upon any agreement made upon consideration of marriage, * * * unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” This alleged ante-nuptial agreement clearly comes within the provisions of the statute, and the statute must control. The contention by plaintiffs in error that the ante-nuptial agreement shows a sufficient consideration to sustain the deed to Mrs. Cora Ready is manifestly untenable, in view of the decision by this court in McAnnulty v. McAnnulty, 120 Ill. 26" date_filed="1887-03-23" court="Ill." case_name="McAnnulty v. McAnnulty">120 Ill. 26, and cases there cited. Neither is the consummation of the marriage sufficient to take such an agreement out of the statute. Richardson v. Richardson, 148 Ill. 563" date_filed="1893-10-26" court="Ill." case_name="Richardson v. Richardson">148 Ill. 563; McAnnulty v. McAnnulty, supra.
Complainant’s rights as a creditor of Alexander Ready, the husband, having intervened while the title remained in him and before the alleged ante-nuptial agreement was consummated between the husband and wife, the agreement falls within the operation of the statute and is void.
The $500 claimed to be given to Cora Keady by her brother, the contractor, we cannot view in the light of a gift. The architect’s plans for the house were estimated to cost $3100 or $3200. Keady had only $2700 he could put in the house, and the contractor, the brother of Mrs. Keady, finally agreed to build the house for $2700,—a price less than the estimated cost.
As to the $400 earned by the wife before her marriage to Keady, and which she placed in his hands to be used by him until such time as the money, with interest, should be put in a home, we are inclined to hold the same view as the Appellate Court: that the equities as to this item are so strong that a lien should be reserved against the property superior to the rights of White, the creditor. But we do not concur with the Appellate Court that Mrs. Cora Keady is not entitled to interest on the $400. Interest, in equity, is allowed because of equitable considerations, and it gives or withholds interest as, under all the circumstances of the case, it deems equitable and just. This money was placed in the husband’s hands, and remained there, from shortly after their marriage, in January, 1886, and was used by him until May 5, 1891. Mrs. Keady testified on her cross-examination that she let Keady have the $400; that she was to have the worth of her money and interest; that he took it and used it. Keady himself says she was entitled to interest on this money, and as a creditor of her husband she was entitled to receive interest for its use.
The decree of the Appellate Court is affirmed, except that the circuit court is directed to allow interest on the $400 from January 6, 1886, to May 5, 1891.
Decree affirmed in part.