218 F. 807 | 7th Cir. | 1914
Appellant filed a creditor’s bill, based upon a judgment for $62,500, to recover certain lands from the estate of the wife of one of 'the judgment debtors. The decree denied the prayer of the bill. The chancellor found the material facts as follows:
That on June 17, 1903, said James B. McKay owned lots 12, 13, and 14, and the north one-half of lot 15, in block 51, in Elston’s addition to Chicago, situated on Goose Island, Chicago, and on that date conveyed said property, the only consideration therefor being the indebtedness mentioned below, to his wife, Elizabeth M. McKay, by mesne conveyance through Frederick T. Hoyt, subject to a mortgage of $7,500.
That prior to the time of said conveyance said Elizabeth M. McKay had loaned money to her husband, James B. McKay, on several occasions, as follows: On February 21, 1895, she mortgaged certain property owned by her at 27 East Ohio street, Chicago, and occupied by herself and her husband as a homestead, for the sum of $10,000, and turned the money over to her husband; on January 24, 1902; she paid off $2,500 of the principal of said mortgage; and on February 1, 1902, she paid off $2,500 of the principal of a $10,000 mortgage indebtedness of her husband’s, secured by a mortgage on his aforesaid .Goose Island property. Out of said transaction an indebtedness arose from said James B. McKay to his wife, which on June 17, 1903, was a valid and subsisting indebtedness for the principal sum of $12,500, with interest as hereinafter provided, which it was understood between them, at the time of said transactions, was to be paid out of the proceeds of said prop-' erty.
That said James B. McKay made said conveyance in view of his liability on said Chapin Brokerage Company contract, and because of it, and said conveyance left said James B. McKay insolvent and unable to pay the whole, or any substantial part, of his indebtedness to said Theodore B. Casey.
That said conveyance was not made or accepted as a present satisfaction of the aforesaid indebtedness, and after the conveyance of said property said James B. McKay kept up all interest payments on the $7,500 mortgage*809 on said property, and also on tlie $7,500 mortgage on his wife’s Ohio street property, until the death of his wife in May, 1905, but all taxes on said premises after said conveyance were paid by said grantee.
That said conveyance was made to protect and secure his wife for the aforesaid indebtedness, with the intention that as soon as said property was sold the proceeds should be applied in satisfaction of said indebtedness. That said conveyance was a lawful preference given to Mrs. McKay as a legal creditor of her husband, and was not illegal, fraudulent, or void as to the complainant, as alleged in the bill of complaint; but complainant is entitled to the surplus proceeds of said property, if any, over and above the amount required to reimburse the estate of Mrs. McKay the principal of said advances by her, the charge created by her on her own property for his benefit, as heroin stated, all subsequent carrying charges, with interest thereon, and interest on such advances and payments, the amount thereof to be determined upon an accounting as hereinafter provided.
The pertinent issue of fact was determined solely upon the testimony of James R. McKay, and counsel urges that the foregoing rule applies only where there is a conflict in the evidence. This is not so. The evidentiary facts may all be made known from the mouth of a single witness, and yet the ultimate fact as determined by the chancellor is just as persuasive as if the evidentiary facts had come from many witnesses.
At the trial evidence was offered tending to prove a valid consideration for the transfer which was attacked, and nothing to the contrary.
' Only questions of fact are presented by the assignment of errors in this case, and no error appearing in the application of the law, and no serious mistake appearing to have been made in the consideration of the evidence, the finding of the chancellor will not be disturbed.
The decree must be affirmed, with costs against the appellant; and it is so ordered.