Johnson v. Huber

34 Ill. App. 527, 1889 Ill. App. LEXIS 294

• Court: Appellate Court of Illinois
• Decided: February 4, 1890
• Status: Published

Opinion

Green, J.

The first objection made by appellant is, that the court erred in overruling motion to dismiss the suit for want of bond for costs, because Mary Huber was a resident of Missouri. This motion was made at the March term, 1889, after rendition of decree.

It does not appear by affidavit or otherwise that at the time suit was commenced complainant was a non-resident. This fact must be shown before a motion to dismiss could be entertained. Leadbeater v. Both, 25 Ill. 587. Besides this Sec. 3, Chap. 33, does not provide for the unconditional dismissal of the suit for this cause, upon motion, but contemplates that opportunity should be given complainant to file such bond within a time to be fixed by the court; the section provides if the action shall be commenced without security the court, on motion, shall dismiss the same “ unless the security for costs shall be filed within such time as shall be allowed by the court, and when so filed it shall relate back to the commencement of the suit.” The court did not err in overruling the motion. Lee v. Waller, 13 Ill. App. 403.

It is next urged that complainant, being a married woman and non-resident, is not entitled to maintain a bill of this character against Thomas Holán. It may be true that when a foreign law is relied upon for the recovery of a right, or as a defense, the law must be pleaded and proved as any other fact, but the lex fori is the law of the remedy, and her right to maintain a suit for the protection of her interests is given by our statute and does not depend upon the statute of Missouri. Sec. 1, Chap. 68, Rev. Stat. Ill.

Appellant objects also to the ruling of the court in admitting in evidence the judgment of October 21, 1886, because .G-esche W. Elsen, or her administrator, was not made a party to the amended bill, and because there was not sufficient proof of the identity of the parties to the judgment with the parties to this suit, or that the judgment was a judgment of the Circuit Court, or that it came from the proper custody.

As to the first objection it is sufficient to say it was not necessary to make Gesche W. Elsen, or her administrator, or her heirs, parties. Her interest in the real estate was for life only, and expired at her death; this proceeding involved no assets of her estate, had she left any, and it is not shown she left any. Judgment is joint and several; it may be made out of the lands and tenements of one of the defendants joined with the others in the same execution, and issued on a judgment against all; execution upon the real estate of a surviving defendant without reviving judgment against deceased, defendant’s heirs and executors, is valid. Reed v. Garfield, 15 Ill. App. 290. In Craig v. Smith, 94 Ill. 370, the heirs of Craig were not made parties; he in his lifetime conveyed the premises in controversy with covenants of warranty, and it was held they had no interest in the lands requiring them to be made parties, and it is said in the opinion whether any liability would ever devolve on them, depends on a fact not disclosed, viz.: whether assets had or would come to them from the estate of their ancestor, the extent of liability would depend upon the value of such assets. It does not appear the heirs have any interest directly or remotely in this land. As to the second objection made to the admissibility of said judgment in evidence, it seems to us that without this evidence the answer is sufficient. It admits the rendition of the judgment in favor of complainant against defendants Johnson and Fredericka Nolan, at the term of court and for the amount as alleged in the bill, and does not deny that the judgment was also recovered against Gesche W. Elsen as alleged.

The next error assigned is, decreeing said deed and mortgage to be null and void as against complainant, without Gesche W. Elsen, or her administrator or heirs, being parties to the suit. We have already expressed our views upon this contention, in commenting upon the objection to the admissibility of the judgment in evidence, and will only add that Sec. 39, Chap. 77, Rev. Stat., cited by appellant, has no application here; the decree does not order the execution against estate of deceased, or subject to the judgment, real estate in which she died seized of any interest.

It is further insisted, the decree is erroneous because it does not find the amount due complainant and to be paid by the defendants. The decree finds the whole amount of judgment $682.80 and costs, due October 21, 1886, and for this amount, with interest and costs, the interest of defendants in the said real estate is held liable. We perceive no necessity for a more definite finding. The amended bill alleged that at the time of contracting said indebtedness Gesche W. Elsen had a life estate in said premises, and Johnson and Fredericka Nolan were the owners of the fee; the answer does not deny that Gesche W. Elsen owned a life estate, but denies the said defendants were owners in fee simple of said real estate, and avers each was the owner of one-fourth interest therein. The decree found defendants Johnson and Fredericka Nolan were the owners in fee of the undivided half of said real estate when the indebtedness was contracted, subject to the life estate of said Gesche W. Elsen. The decree is said to be erroneous for the reasons: 1st. There is no evidence that said named defendants were owners in fee. Aside from other evidence, which we think amply sufficient to' establish the fact, the answer itself admits enough. It is therein alleged that on August 16, 1886, Fredericka was the owner of one-fourth, and the interest of Johnson on same date was one-fourth and the other tmdivided half of said premises belong to the two minor children. 2d. The evidence did not correspond with the allegations.

In Breckenridge v. Ostrom, 79 Ill. 71, the bill alleged the complainant was the owner of one undivided half of the real estate described. The decree found a less interest in complainant; held, not a material variance.

It is also urged that the decree does not follow the prayer of the bill and is therefore erroneous. "We think under the prayer for general relief the decree of the court was proper. The scope and purpose of the bill was to subject the interest of defendants Johnson and Fredericka Nolan in said real estate, to the payment of complainant’s judgment. To do this a conveyance of said real estate to Thomas Nolan, and a mortgage by him upon the same, apparently Iona fid.e, but alleged to be fraudulent as against complainant’s judgment, must be set aside and held for naught as against her. If the evidence substantially established the material allegations of the amended bill, the decree was proper under the prayer -for general relief, notwithstanding specific relief was prayed for, broader than that which the decree granted.

The specific relief asked, was that said conveyances be decreed to have been made in fraud of complainant’s rights as creditor of Johnson and Fredericka; that the same be declared null and void; that said judgment, interest and costs be decreed to be paid by said Johnson and- Fredericka, by some short day, and in default of such payment, that the master in chancery be directed to sell all or part of said real estate and pay to complainant the amount of said judgment, interest and costs. It will be observed that the relief granted was different from this specific relief asked, in this, that said deed and mortgage are, by the decree, set aside and vacated and declared null and void as against the corngglad/namt; that an execution upon the judgment is authorized to be issued against Johnson and Fredericka, and the sheriff, instead of the master in chancery, is to levy upon, advertise and sell the interest of those defendants in said property, for the payment and satisfaction of said judgment ititerests and costs. If the bill was maintained by the proof, the relief decreed was such as in equity and good conscience the complainant was entitled to, and such as under the prayer for general relief the court properly decreed. Hopkins v. Snedaker, 71 Ill. 449; Merchants Nat. Bank v. Hogle, 25 Ill. App. 543.

It is next contended the court erred in finding that Fredericka Holán did not have a homestead in said real estate.

The second clause of the will of John Frerichs, read in evidence on behalf of complainant without objection, is as follows : “ After the payment of such funeral expenses and debts, I give, devise and bequeath unto my beloved wife, Gesche Wilhelmina Frerichs, all my real and personal property by me now owned and kept, knowing that she will keep and maintain my children, John Johnson (of whom I am stepfather), Frederick, William and Helena Frerichs, my own children;” and the third clause of said will is: “ After my said wife’s death, all the property aforesaid to her given, or so much thereof as may remain unexpended, to the named children, John Johnson, Frederick, William and Helena Frerichs, to be divided equally, share and share alike.” The last clause appoints the wife, Gesche Wilhelmina Frerichs, executrix without bond. This will bears date March 5, 1873, was probated March 22, 1873, and Gesche W. Frerichs took the oath as executrix on the same day.

By the terms and provisions of this will Gesche W. Frerichs took a life estate in all the real estate of which her husband died seized, with remainder over to the children named in the will. Bergan et al. v. Cahill, 55 Ill. 160; Bland v. Bland, 103 Ill. 12.

But it is said there is no evidence to show that Gesche W. Frerichs and Gesche W. Elsen are one and the same person.

It is alleged in the amended bill, and not denied in the answer, that Gesche W. Elsen had a life estate in said premises on September 30,1883, and it is admitted that at the date of deed to Holán, Johnson and Fredericka, each owned an undivided fourth of said premises. It is alleged in amended bill, and not denied by the answer, that said Gesche W.-Elsen at the time of her death (July 24, 1887) had but a life estate in said premises. Johnson testified four persons owned the property in 1886, viz.: John Johnson, Fredericka Nolan, Willie Frerichs and Lena Frerichs, and that Fredericka was his half-sister.

Thomas Nolan corroborates this testimony as to the names of the owners, and the share belonging to each; he also testified his mother-in-law died July 24,1887; that he bought the property from Johnson and his mother-in-loro, Mrs\ Elsen, and at the time he married his wife, Mrs. Elsen was living in the house and continued to do so up to the time of her death. William Frerichs testified Fredericka Nolan was his sister, and that he owned one-fourth interest in the property.

It thus appears by the allegations not denied, and by the admissions in the answer, that Gesche W. Elsen had a life estate in said premises as early as 1883, and at the time of her death. The' evidence also abundantly establishes the fact she was the same person named in the will as Gesche Wilhelmina Frerichs, and that Fredericka Nolan was the child of the testator named therein as Frederick. The court was warranted in finding that Gesche W. Elsen took a life estate in said premises by the devise in said will, and as such tenant for life, resided on the premises before and up to the time complainant recovered her said judgment, and continued to so reside thereon up to the day of her death, and during all that time had the homestead estate therein. The owner of a life estate in land, if in possession, has as complete dominion over it as the absolute owner of the fee has over his estate in possession. Deere v. Chapman, 25 Ill. 610. The life estate and possession of said premises being in Mrs. Elsen, she had the homestead estate therein during such possession and up to the time of her death. Potts v. Davenport, 79 Ill. 456.

Before her death the lien of the judgment upon the' property had accrued, and the title in fee of the surviving judgment debtors, and their interest in said property, was subject to that lien, unless the deed to Thomas Nolan conveying that interest, before the judgment was rendered, was a bona fide valid conveyance. Rock v. Haas, 110 Ill. 533. Appellant insists that the evidence fails to show the conveyances were made or accepted with a fraudulent intent to hinder or delay complainant in the collection of her judgment; or if it is shown the grantors did convey with such intent and purpose, ¡Nolan did not participate in the fraud and was an innocent purchaser for value. We think the testimony of complainant, who was a competent witness, in our judgment, and Frederick ¡Ruderhausen, as to the declarations and threats of these judgment debtors, together with the admitted fact that by this deed they conveyed all the property they then owned, reserving nothing for their creditors, and that so far as (deselle W. Elsen and Fredericka ¡Nolan were concerned, they were not paid a cent for their interest, and the further fact that Johnson was paid no money but took a note payable in three years secured only by the interest he had conveyed, and that Thomas ¡Nolan, the grantee of his wife, his mother-in-law and brother-in-law, had lived in the same house with his wife and her mother during a long time prior to said conveyance, and could hardly be ignorant of business matters in which both were interested, and took a deed under all these circumstances, outweigh the testimony on the part of defendants denying the fraudulent intent charged, and warranted the court in finding and decreeing as it did. Treadwell v. McEwen, 123 Ill. 253; Bell v. Devore, 96 Ill. 217; Jaffers v. Aneals, 91 Ill. 487; Phelps v. Curts et al., 80 Ill. 109; Emerson v. Bemis, 69 Ill. 537.

The objections to the decree of the Circuit Court already discussed in this opinion are all we deem it necessary to notice, and no sufficient reason is perceived for reversing said decree. It is therefore affirmed.

Decree affirmed.