17 Ill. 281 | Ill. | 1855
This is a creditor’s bill filed by Hatch, against Weightman and Preston, to set aside an alleged fraudulent conveyance, made by Preston to Weightman. Notwithstanding the very able and learned argument for the plaintiffs in error, after a full consideration of all the objections, we find we must affirm the decree excepting as to one hundred and sixty acres of the land which Weightman had sold to Duval, and twenty acres sold to Bogle, neither of whom were made defendants to the bill, and as against whom no decree should have been made.
The bill alleges that the complainant had obtained a decree in a suit in chancery in the Pike Circuit Court, against Preston, for $3069.50 and costs, on which he had an award of execution; that an execution had been issued to Pike county and returned nulla bona; that an alias execution had been issued to Tazewell county, and levied upon the land in question; that Preston had previously conveyed the land to Weightman, by a colorable conveyance and without an adequate consideration, and for the purpose of defrauding his creditors, and prays that the conveyance may be set aside, and the lands subjected to the payment of the decree referred to above. As to Preston, the bill was taken for confessed. Weightman answered on oath, denying the fraud, and showing that he had conveyed to other parties, portions of the land as above stated, in good faith. Those grantees have not been made defendants to this bill. We think the evidence is quite sufficient to overcome the defendants’ answer, and to show that the conveyance to him was not made upon a bona fide sale. He distinctly stated to at least two witnesses on different occasions, that he held the lands in trust for Preston, and from his statements it very clearly appears that that conveyance was made because of Preston’s embarrassments, and to put the property beyond the reach of his creditors. Upon the hearing the complainant attempted to prove the alias execution as alleged in the bill by parole proof of its contents, after having attempted to explain its absence. This explanation was not sufficient, and were proof of that execution necessary to entitle the complainant to the relief sought, the decree would have to be reversed. But that averment was not necessary in the bill and it was not necessary to prove it on the hearing. A party has a right to the same remedies to enforce the collection of a decree in chancery for a specific sum of money, which he has to enforce a judgment at law. Our statute gives him an execution upon such a decree, the same as upon a judgment at law, and he must have the same right to remove out of hi's way fraudulent conveyances. For all the purposes of this bill, therefore, that suit must be regarded the same as a judgment at law. Where a party seeks to remove a fraudulent conveyance or incumbrance out of the way of his execution, he may file his bill for that purpose so soon as he has obtained his judgment, and before he has made any effort to satisfy his judgment out of other property of the creditor. I cannot do better than to quote what was said on this subject by this court in the case of Miller et al. v. Davidson, 3 Gilman 518. “ Where a creditor seeks to satisfy his debt out of some equitable estate of the defendant, which is not liable to a levy and' sale under an execution at law, then he must exhaust his remedy at law, by obtaining judgment and getting an execution returned nulla bona, before he can come into a court of equity for the purpose of reaching the equitable estate of the defendant, and this is necessary to give the court jurisdiction, for otherwise it does not appear but that the party has a complete remedy at law. This is what may be strictly termed a creditor’s bill. There is another sort of creditor’s bill very nearly allied to this, yet where the plaintiff is not. bound to go quite so far before he comes into this court, and that is where he seeks to remove a fraudulent incumbrance out of the way of his execution. There he may file Ms bill as soon as he obtains his judgment.” Whether our statute, which subjects equitable interests in land to sale on execution, has done away with this distinction, it is unnecessary now to inqure. It is enough for this case that it came strictly within the rule that prevailed before that statute, wMch allowed the party to file his bill to remove a fraudulent conveyance, without showing that he could not obtain satisfaction out of. other property of the defendant. As to him, the conveyance being void, the creditor has the right to place himself in the same position which he would have occupied had it never been made, and first seek satisfaction out of this land. The grantee’s title being tainted by fraud, he has no right to say that all other means to satisfy the debt shall be exhausted, before he shall be disturbed in his title. In this case, then, the complainant was not bound to issue any execution, whatever. He was .as much entitled to the relief asked, without it as with it. It was an immaterial averment in the bill, and not necessary to be proved at the hearing.
Again, it is objected that the complainant did not show a complete record of the suit in the Pike Circuit Court. This was not necessary; the decree alone was sufficient, prima facie,, to entitle the complainant to relief, the balance of the case being made out. That would have been sufficient to have maintained an action of debt, upon the decree. The complainant was not bound to show that the decree had never been set aside, reversed or satisfied. That was for the other party to show in his defence, were it true.
We are of opinion that the decree as amended in the Circuit Court must be affirmed so far as it annuls and sets aside the conveyance of Preston to Weightman, except as to those tracts of land sold to Duval, amounting to one hundred and sixty acres, and the tract of twenty acres sold to Bogle, as to which it must be reversed. Also, that portion of the decree wMch directs the sheriff to proceed to sell under the execution from the Pike Circuit Court, for the reason that we find the proof of that execution to be insufficient. Each party must pay one-half of the costs of this writ of error.
