| Ill. | Apr 15, 1865
delivered the opinion of the court:
The bill alleges, that defendant in error, in the month of October, 1862, recovered a judgment against Q. A. Wightman and Edward Benton, in an attachment suit in the Superior Court of Chicago. But, inasmuch as there was no service on the defendants, or levy on property, no execution could issue upon the judgment, against them. Also, that Wight-man’s real name was Charles W. Clapp, and that he and Benton had been engaged in the commission business in the city of Chicago, as partners, for about two years, before the commencement of the attachment suit. That in January, 1862, C. W. Clapp absconded, to defraud his creditors, and that Benton was insolvent and left the city about the same time. That C. W. Clapp,under the false name of Wightman, sold to one Johnson the schooner Palmetto, receiving therefor ten notes of $200 each, secured by a mortgage on the vessel.
That soon afterwards, C. W. Clapp returned secretly to Chicago, and fraudulently and without consideration transferred the notes and mortgage to Albert Clapp. That the notes are due and unpaid, and that Albert holds them in trust for Charles. That Albert knew his nephew had absconded from Massachusetts, owing large sums of money, for the purpose of delaying creditors, and that Albert also knew that Charles assumed the name of Wightman for fraudulent purposes. And that he knew that he absconded from Chicago owing O ( O money, and the sale of the vessel was in contemplation of so absconding, to defraud defendant' in error.
That he also sold to F. & C. Kaehler the schooner Argo, receiving therefor five notes of five hundred dollars each, two of which were secured by mortgage on that vessel, which were transferred, under the same circumstances, to Albert Clapp, who holds them in trust for Charles. And charges a secret agreement that Albert will reassign the notes and mortgages to C. W. Clapp, and that these notes are due and unpaid.
It is further alleged, that in the attachment suit, garnishee process was served on F. Kaehler and Johnson, and that, to their answer, they attached an affidavit of Albert, stating that the assignment was made in good faith, and for a valuable consideration. That Blanchard, as attorney of Albert and C. W. Clapp, holds the notes, and is apprised of all the circumstances of the case. The bill requires answers under oath. Prays that defendants he decreed to pay complainant his judgment, interest and costs, out of the notes; that the assignment he canceled, and that the Clapps be enjoined from collecting the notes.
Albert Clapp answered, admitting the sales of the vessels, the taking of the notes by Charles, and the recovery1 of the judgment in the attachment suit, as alleged. Also the assignment of the notes to him, but denies that it was fraudulent; and insists that it was done in good faith, and to secure bona fide indebtedness, due from Charles to him: Denies all fraud, and all the material allegations of the bill.
The question ai’ises, whether the sworn answer of Albert " Clapp has been overcome by the evidence of two witnesses, or that of'one, and circumstances equal to the-testimony of another. A careful examination of complainant’s evidence shows that there is, we think, an entire want of direct or circumstancial evidence to show that the assignment was without consideration, or was fraudulent. ■ Hor does it show that Albert Clapp was insolvent, or of such limited means that Charles could not have been indebted to him. On the contrary, some of complainants’ witnesses speak of his having some property, and most of them say he was engaged in business on his own account, or for others, and none of them seem to know anything definitely of his means. On the other hand, his testimony shows that he had means. Some of his witnesses say he was successful in business, and that they never heard his'solvency questioned. It also appears that he owned a house in Boston, and another in Salem, and loaned money. The assignment of the notes is prima fade evidence that a eonsidetion was paid, and the complainants’ evidence, we think, fails to overcome it, and the sworn answer, and defendant’s evidence, which seems to support the transaction as fair.
It is true that the evidence shows that Charles W. Clapp left Massachussets in debt, and without the knowledge of his creditors. That he left Chicago in the same manner, and and it may be reasonably inferred that he was insolvent at both places. But we are at a loss to perceive how this proves the transaction fraudulent, or that Albert Clapp, his uncle, had no claims against him. For aught that appears, the debt to his uncle may have been a portion of the debts that rendered him insolvent. Albert swears that he was indebted to him at the time, and to satisfy which, the assignment was made, and we find no positive evidence that it was not true, and we think the circumstances fail to show that he did not owe him. For does the fact, that Albert and Charles were relatives, prove fraud. It may be a circumstance to excite suspicion, but, of itself, is not prooffcnor do we think, in connection with other circumstances, that it overcomes the sworn answer responsive to the allegations of the bill. The decree of the court below must, therefore, be reversed and the cause remanded.
Decree reversed.