22 Ill. 661 | Ill. | 1859
We are not aware of any rule of law requiring a debtor to hold on to his real or personal estate, until a creditor can sue him and obtain judgment and execution. Such a law would produce disastrous effects, by fettering the free transfer and sale of property from one to another. But in all sales good faith must be observed, and they must be so conducted as to. bear on their face no evidences of fraud whatever. Ho matter how much a man may be indebted, he may sell his property for a fair price, or even for a price below its market value, if done honestly and with no view to delay, hinder or defraud his creditors of their just dues, or being in failing circumstances, he has a right to prefer one creditor over all others, even if the preference exhausts his whole estate, and from the honest exercise of this right no court or law, has ever sought to deprive a debtor. A debtor can sell his property for a fair price, even if he sells it with the avowed intention of defeating an honest claim, if no lien exists to forbid it.
Such we understand to be the rights and powers of a debtor. But the sale must be fair and for a valuable consideration, and the parties intending or practicing no fraud.
The evidence before the jury on the trial of the feigned issue, was not, in our judgment, sufficient to satisfy the conscience of the chancellor, of fraud in the sale of these lands. The weight of evidence appears to us decidedly against the finding, and as on trials of feigned issues the same strictness is not required as in suits at law regularly brought to issue, and do not settle and bind the rights of the parties, the chancellor will order new trials, until he is satisfied or will assume the responsibility of deciding the cause against the verdict. Williams v. Bishop, 15 Ill. R. 555.
We are of opinion the court decided correctly, in rejecting the testimony offered, of the divorced wife of McAusland, on principles long established.
We think the purposes of justice can be best promoted by a re-hearing of this cause, and for that purpose reverse the judgment and remand the cause.
Judgment reversed.