Merry v. Bostwick

Trumbull, J. By consent, both parties have assigned errors upon this record. The complainant objects to that part of the decree which allows Seeber any portion of the real estate in controversy, and Seeber complains because he cannot have it all. That the deed from Bostwick to Seeber was fraudulent as to creditors we cannot entertain a doubt. It bears date in October, 1836, and purports to have been executed in consideration of twelve thousand dollars paid by the latter to the former. The evidence clearly shows that Bostwick resided in Louisiana in 1835, and was then insolvent; that he removed from thence to Illinois the same year; that soon after coming to this State he engaged largely in land speculations, and, at the date of the deed to Seeber, had contracted debts, on account of the purchase of real estate, to the amount of eighty thousand dollars ; that Bostwick expended in improvements on the six acres in Upper Alton more than twenty thousand dollars, to say nothing of the other real estate embraced in the conveyance, and .that ten thousand dollars of this amount was expended after the date of the deed; and although Bostwick, according to the speculative value put upon his real estate at that time, was not insolvent, yet it appears that while in such flourishing circumstances, and when property was rapidly appreciating in value, he conveyed to Seeber two hundred and seventy-three acres of land in Madison county, besides the six acres on which he had then expended from ten to fifteen thousand dollars in the erection of a splendid dwelling, which he subsequently finished at a further expense of some ten thousand dollars, all, as Bostwick and Seeber insist, in consideration of the discharge of a debt due the latter of only twelve thousand dollars, and the use of the six acres and dwelling for five years, the parties themselves estimating the rent at $800 per annum. These circumstances, in connection with the character of the improvements made by Bostwick; the fact that he remained in possession and made improvements as well after the sale as before, all the while acting as, and being reputed to be, the owner; the fact that Seeber was his son-in-law; that Bostwick left Louisiana largely in debt, and if not insolvent when the conveyance was made, became largely so shortly afterwards, leave but little doubt that the conveyance was intended to place the property in a situation where it could not be reached by creditors, in case the speculations of Bostwick should turn out disastrously. The year 1836 is distinguished as a period of reckless speculation and extravagance throughout the United States; and without commenting minutely on the mass of evidence in this record, all of which has been carefully examined, the whole case shows that the conveyance to Seeber was made, as well to place the property it embraced beyond the reach of creditors in case of a revulsion in the affairs of Bostwick, as to discharge a debt due to Seeber. We think the evidence does show that Bostwick was indebted to Seeber in some amount; but this circumstance does not relieve the transaction from the taint of fraud in law. The statute makes void all conveyances made with the intent to delay, hinder, or defraud creditors of their just and lawful claims. The complainant has shown himself such a creditor at the time the deed to Seeber was executed, and as to him it must be set aside. If this was the only branch of the case, there could be no doubt of the complainant’s right to have satisfaction of his debt out of the property conveyed to Seeber. But there is another feature in the case which prevents his holding the six acres on which the dwelling-house is situated, either on the purchase heretofore made or subjecting it to an execution hereafter to be issued. The complainant obtained two different judgments against Bostwiek, at different times, before different courts, and for different amounts. The elder of these judgments was rendered at the January term, 1838, of the Municipal Court for the city of Alton, and was for the sum of $1,006.66. The six-acre tract was sold on an execution issued on this judgment and purchased in by the complainant, August 20,1838, for $500, from which sale Seeber, as a judgment creditor, redeemed on the 28th August, 1839, by virtue of a judgment in his favor against Bostwiek, obtained in July, 1839, in the Circuit Court of Morgan county. The redemption-money was paid to the sheriff, and by him to the complainant, who received the same without objection. None of these facts are noticed by the complainant in his original bill, but Seeber sets them up in his answer, alleging that he made the redemption, not because the deed from Bostwiek was insufficient to convey him the title, but to avoid any litigation which might possibly grow out of it. The complainant admits the judgment sale and redemption as alleged by Seeber in his answer, and seeks to avoid their effect in his amended bill, by alleging that the judgment under which Seeber redeemed was founded on a warrant of attorney executed by Bostwiek to Seeber without any consideration, “ to enable him to procure a judgment thereon which should be used by Seeber to defraud the complainant, and prevent him from enjoying the fruit of his purchase.” It is difficult to conceive how the complainant was to be defrauded of the benefit of his purchase by the redemption. In the very act of redeeming, Seeber refunded to the complainant the whole amount he had given for the land, with ten per cent, interest. This money the eomplainr ant received without objection, and still retains, without even an offer to return it. Under such circumstances, it comes with an ill grace from him to allege that he has been prevented from enjoying the fruit of his purchase. The legal presumption is that he bid for the property what he considered' it worth, and he knew at the time that the defendant in execution would have the right to redeem from his purchase at any time within twelve months, and if he failed to do so, that judgment creditors would have the same right for three months longer. If the redemption was invalid, as complainant, in his amended bill alleges, even then he could not succeed in this suit, for the reason that he does not pretend to claim the property on the first purchase, but under a purchase which he subsequently made at a sheriff’s sale on an execution issued upon a junior judgment. , The allegations and proofs must correspond, and the case made by the complainant, under his purchase on a junior judgment, is destroyed by the sale under the first judgment, whether redeemed from or not. Admit that the complainant could do so unjust a thing as to retain Seeber’s money, which is acknowledged to have been paid to redeem the property, and still have the redemption set aside, the consequence would be that he would then be entitled to the property on his first purchase, which would present quite a different case from the one stated in either the original or amended bill. But the idea is preposterous, that in a court of equity the complainant can have both the-land and the money paid for its redemption. The complainant can claim nothing on his second purchase, made under the junior judgment, for the reason that Bostwick had no such interest in the premises, at the time that sale was made, as could be taken and sold on execution. The premises had been previously sold on an older judgment; and, before the defendant’s right to redeem had expired, within less than twelve months, the complainant caused them to be sold a second time, on a junior judgment. The only interest which Bostwick then had was the right to redeem; and to allow this right to be sold on execution would defeat the whole policy of the law allowing redemptions. The right was designed as- a favor to the debtor, to afford him an opportunity to save his real estate by the payment, at any time within twelve months, of the price for which it sold, with ten per cent, interest; but it would be entirely cut off by allowing this right to redeem to be sold on a second judgment. Again, such a practice would interfere directly with the mode prescribed by the legislature for redemptions by judgment creditors. The law will not permit them to redeem till the expiration of twelve months from the first sale, and it would be inconsistent with this provision of the statute to allow a judgment creditor to accomplish the same object by a sale made within the twelve months. It was suggested, upon the argument, that, admitting the second sale to have been invalid, and that the purchaser took nothing under it, still the complainant would have the right to have Seeber’s title, acquired by the redemption, set aside, and the property declared subject to the judgment which the complainant now holds against Bostwick. This cannot be, for the redemption by Seeber must be either valid or invalid. If valid, then he is entitled to the property; if invalid, then complainant is entitled to it under his first purchase, which he does not even pretend, nor could he with any show of justice, after receiving and retaining the redemption-money paid by Seeber. In no event has Bostwick any interest in the premises which could now be made subject to complainant’s second judgment. The decree of the Circuit Court is affirmed, with costs. Decree affirmed.