164 Ill. 181 | Ill. | 1896
delivered the opinion of the court:
The only question urged by appellants in their original brief and argument filed in the Appellate Court and re-filed in this court is, that there was no sufficient proof of fraud in the execution of the bill of sale of personal property and in the conveyances of real estate from Henry C. Schumacher to his son, William, to justify the decree rendered by the circuit court.
Section 4, chapter 59, of Hurd’s Statutes, provides as follows: “Every gift, grant, conveyance, assignment or transfer of or charge upon any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to disturb, delay, hinder or defraud creditors or other persons, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with like intent, shall be void as against such creditors, purchasers and other persons.”
While it is an established rule of law that fraud is never presumed, but must be proven by the party alleging it, yet such proof need not necessarily consist of direct evidence. It may be shown by proof of attending facts and circumstances which raise the inference of fraud. (Bear v. Bear, 145 Ill. 21; Treadwell v. McEwen, 123 id. 253.) In the case of Bryant v. Simoneau, 51 Ill. 324, it was said by the court in the opinion (p. 327): “It is urged that fraud must be proved, and not inferred. This is true, but, like all other facts, it may be proved by circumstances. We should seldom, if ever, expect to prove fraud by the admissions of a party, nor should we expect to find direct and positive evidence of the fact. Whatever circumstances, when proven, convince the mind that the fraud charged has been perpetrated, is all that is required. (Bullock v. Narrott, 49 Ill. 62; Gray v. St. John, 35 id. 222; Boies v. Henney, 32 id. 130.) While fraud can not be established by circumstances that merely raise a suspicion, yet when they are so strong as to produce conviction of the truth of the charge, although there may remain some doubt, then it is proved. This is believed to be the extent of the rule that fraud miist be proved. Any other application of the rule would render it impracticable and useless. If it cannot have the force we have given it, and stand, then the demands of justice would require its abrogation. If it must prevail, and none but positive evidence could prove fraud, then the rule would not only promote, but it would aid in concealing, fraud. But such never can be the scope or effect of the rule.”
Transactions tainted with fraud, or those which are, in effect, for the purpose of defrauding others, are generally secret in their nature. They are concocted for a purpose in its nature unlawful, and their various details and steps are attempted to be concealed from the public. Such fraudulent transactions are not susceptible of the same direct and positive proof as are other facts, and therefore the wise policy of the law provides that they may be so shown by proof of such circumstances from the existence of which the inference of fraud is presumed. Where a bill alleges fraud, and proof is offered which raises such inference, the fact that no explanation is offered of such transactions by the party charged is a further fact to be considered, and inference may be drawn therefrom. (Draper v. Draper, 68 Ill. 17.) In this case none of the conveyances sought to be set aside were made until after suit was brought against Henry G. Schumacher, and a portion of them were made after service of summons against him and but a few days before judgment. The farm in question, worth $6000, in addition to a large amount of personal property, was conveyed to a son aged about twenty-three or twenty-four years, and who was, apparently, before the purchase, possessed of no property. No explanation was offered in any manner by defendants of these transactions. Without entering into the details of all the facts relied on, which would not, perhaps, be of value in any other case, it is sufficient to say that we agree with the findings of the circuit and Appellate Courts that there was but one object intended, and that was to defeat the collection of the judgment which was about to be rendered against appellant Henry C. Schumacher.
Appellants, in their brief filed in the Appellate Court and re-filed here, relied upon one error only to reverse the decree of the circuit court, and that was, that the fraud charged was not sufficiently proven. No authorities were cited to sustain the points argued.
After the filing of appellees’ brief and argument a very extensive reply brief was filed, citing many authorities, and attempting to set up new errors not previously argued. Such practice is not permissible. (Pratt v. Trustees, 93 Ill. 475.) When errors are not insisted on by appellant in his opening brief, it is too late to present them in a reply brief. A practice of this kind would be very unfair to appellee, and would deprive the court of the benefit of any argument appellee might have made if the objection had been raised at the proper time. Illinois Central Railroad Co. v. Heisner, 45 Ill. App. 143.
We see no reason to disturb the judgment of the Appellate Court affirming the decree of the circuit court, and it is accordingly affirmed.
judgment affirmed.
Mr. Justice Cartwright took no part.
