29 Ill. 519 | Ill. | 1863
This was a bill in chancery, filed by the complainants as creditors of Joshua Ward, to set aside, oh the ground of fraud, a certain deed and mortgage executed by Ward to his son, William F. Ward. So far as the complainants are concerned, the fraud was fully established. The proof is abundant on that point, and that they were hindered and prevented thereby, from collecting the debt of Joshua Ward. A decree was passed, declaring this deed and mortgage, at the time they were executed, fraudulent and void-, and it vacates and cancels them, and sets them aside, as against all parties.
The only question presented is, as to the- propriety of this decree.
The complainants, by their bill, ask only that these conveyances shall be set aside as to them,, and this is all they had a right to ask. The decree should be according to the prayer of the bill, and affect only the parties to the bill. The decree is erroneous, for these conveyances are not utterly void. Our statute declares, they shall be deemed and.taken only as against the persons, their heirs, etc., or assigns, whose debts, etc., shall, by such devises, be in any wise disturbed, hindered, delayed or defrauded, as “ clearly and utterly void.”
By a long course of decisions in the courts of Great Britain, and in most of those in this country, including this court, it is held, that as between the parties to the deed, it is valid and binding. Lowry v. Orr, 1 Gilm. 85 ; Chauteau v. Jones, 11 Ill. 318; Waggoner v. Cooley, 14 Ill. 239 ; 1 Story’s Eq. Jur., sec. 371; Fonblanque’s Equity, 122, with notes of reference to American cases. The case of Hyslop v. Clarke, 14 Johns. R. 464, appears to have been decided on the language of the statute of frauds, which differs from our statute. And so of the case of Mackie v. Cairns, 5 Cowen, 564. But whatever may be the decisions of the courts on the point, our statute declares with great emphasis, that only as to the creditors shall the deed be held to be “ clearly and utterly void.”
Here a point is made by the defendants in error, that the deed is void as to all subsequent, as well as prior creditors, and if any modification of the decree be made, it should not extend to them. As at present advised, we are of opinion that the statute contemplates creditors who were such at the time of the execution of the deed alleged to be fraudulent, and none other, and for the reason that the credit could not have been given on the faith of the property conveyed. The decree going to the extent of annulling the deed and mortgage for .all purposes, and as to parties other than the complainants, ■is to that extent, erroneous and must be so modified, as to declare the same fraudulent and void as against the complainants only, and it will be so modified. Each party will pay one-half the costs of this court.
Decree modified.
