| Ill. | Nov 17, 1880
delivered the opinion of the Court:
This was a bill, filed by Lucius B. Otis, as receiver of the State Savings Institution of Chicago and judgment creditor, against David D. Spencer and Susan D. Spencer, his wife, to set aside a conveyance alleged to have been made by Spencer to his wife of his homestead in Chicago, shortly before their marriage, as being fraudulent and void as against creditors, and to subject the premises to the payment of complainant’s judgment against David D. Spencer.
Service was had, by publication, upon both Spencer and wife, and a decree was taken pro conjesso, setting aside the conveyance and subjecting the property to the lien of the judgment.
Mrs. Spencer afterward presented her petition under the statute for leave to defend, upon the ground that no personal service had been had upon her, which leave was granted and her answer filed, and the cause heard as to her upon the pleadings and proofs, and the court entered an order confirming the original decree, whereupon Susan D. Spencer appealed.
The bill, as originally drafted, alleged that David D. Spencer, “on the 21st day of November, 1876, by his deed of that date, conveyed the said above described premises to one Susan A. Dennis, as well for and in consideration of the love and affection which he had and bore toward said. Susan A. Dennis, as for the sum of $1; that said deed of conveyance was filed for record in the recorder’s office of Cook county on the 14th day of December, 1876; that said above described property was conveyed by said David D. Spencer to said Susan A. Dennis, for such pretended consideration, in contemplation of the marriage of said defendant David D. Spencer to Susan A. Dennis, which marriage took place on the 14th day of December, 1876.”
After the hearing had been had, but before the entering of the confirmatory order, and on the day thereof, the court, against the objection of appellant, permitted appellee, on his motion, to amend the bill by changing the word “conveyed” to “attempted to convey,” and the words “was conveyed” to “was attempted to be conveyed;” thereupon appellant moved for a rehearing of the cause, and to offer evidence upon the subject of the delivery of the deed from David D. Spencer to Susan A. Dennis, which motion the court overruled, and then entered the order confirming the original decree in appellee’s favor.
We think there was error in this refusal by the court, after such amendment, of leave to appellant to introduce evidence upon the subject of the time of the delivery of the deed, whether before or after the marriage.
In the one case it would have been an antenuptial, and in the other a postnuptial settlement; and the transaction, as being the one or the other, would be quite differently viewed. As an antenuptial settlement, it might be sustained, while, if a postnuptial settlement, it might be invalid. There was considerable evidence in the case, on the part of the complainant, that the deed ivas not delivered before the marriage, although, as we conceive, that was not in issue before the time of the amendment, and the decree may have proceeded upon the ground of the non-delivery of the deed before the marriage.
We consider that, by the allegations of the original bill, it was admitted that the deed was delivered before the marriage, and that before the amendment no proof Avas needed on the part of defendant, as none was introduced, to sIioav that it Avas delivered before then, although there was evidence on the part of complainant tending to show that it was not. Such evidence would not avail against the admission of the bill to the contrary.
The allegation of the original bill, that Spencer, before the marriage, by his deed, conveyed the property to Susan A. Dennis, implied that he delivered the deed to her before that eArent. The property could not have been conveyed by deed, unless the deed had been delivered,—a delivery of the deed being an essential of a conveyance by deed. When then the admission which was made by the original bill of the delivery of the deed before the marriage Avas withdrawn, as it was by the amendment made, opportunity should have been afforded to defendant to meet the new phase of the case made by the amendment, by offering proof upon the subject of the delivery of the deed, of the time thereof, and in contraAmntion of complainant’s evidence in that respect, first rendered necessary because of such amendment.
For the error indicated, without considering the case further, the decree must be reversed and the cause remanded.
Decree reversed.