Zimmerman v. Willard

Mr. Chief Justice Mulkey delivered the opinion of the Court: For several years next before July, 1882, Elijah A. Willard carried on the banking business at Jonesboro, Union county, this State. He was also, during the same time, engaged in the buying and shipment of grain at different points in the State, but principally in Union and Jackson counties. His operations in the grain trade were carried on mainly through Gr. W. Patterson, who resided on a farm belonging to Willard, near Makanda, in Jackson county, some fourteen miles distant. In July, 1882, Willard failed, and went to Mexico, where he has since resided. On his way there he passed through the city of St. Louis, where he executed and acknowledged, before a notary of that city, a deed, apparently in due form, bearing date July 18, 1882, whereby he conveyed to Thomas Hileman, Daniel Hileman and Charles F. Willard, all his estate, both real and personal, for the benefit of his ■creditors. This deed was sent by mail to the grantees in Union county, and was there received by them, and properly recorded on the 22d of the same month. The grantees having afterwards declined to assume the trust, by a proper proceeding in the county court of Union county Philip V. N. Davis and William G. Rich, Sr., appellees, were, on the 24th of July, 1882, duly appointed assignees in their stead, and thereupon entered upon the duties of the trust. On the 9th of September following, Mary C. Zimmerman, the appellant, and a number of other creditors of Willard, proceeding upon the hypothesis that Patterson was a partner with Willard in the grain business, sued attachments out of the circuit court of Jackson county against the estate of the said Willard & Patterson. These writs were served upon a number of commission merchants in the State, as garnishees, whose answers show that they, collectively, had in their hands some $3000 due Willard, or Willard & Patterson, as the case might be, on account of wheat transactions between them. Pending these attachment proceedings, Davis and Rich, the assignees, appeared in court and filed interpleaders, claiming that the money in the hands of the garnishees was the individual property of Willard, and consequently passed to them by virtue of the deed of assignment. The attaching plaintiff in the present case denied, generally, the allegations of the interpleader, and also replied specially that the deed of assignment through which appellees claim “was executed, made, had and contrived by the said Elijah A. Willard of his fraud and covin, with the intent and purpose to delay, hinder and defraud his creditors, ” etc. To this replication the court sustained a general demurrer, and the cause was then submitted to a jury upon the issue tendered by the interpleader, resulting in a verdict in favor of appellees, upon which the court rendered final judgment. From this judgment there was an appeal to the Appellate Court for the Fourth District, where the same was affirmed. The present appeal is from the judgment of the latter court. The ruling of the court upon the demurrer to the special replication to the interpleader presents the first question for consideration. It is first objected that the replication states a mere conclusion of the pleader, and not the facts constituting the fraud, as it should do. This is a misapprehension. While we fully recognize the general rule adverted to by counsel, yet in applying it there is another general rule that must-not be lost sight of, namely, that it is not proper to plead mere matters of evidence in any case. It may be difficult in-some cases to apply these well recognized rules of pleading,— and this, indeed, is conceded by the most authoritative text writers; yet we perceive no difficulty in applying them in the-present instance. The fraud relied on here is not, as is generally the case, to be inferred from a great variety of issuable-facts to be proven on the trial. It differs from other cases in this respect, however, only in the paucity of the issuable-facts from which the fraud is to be inferred. The defencehere consists of two facts, namely, the making of the deed, and the alleged illegal or fraudulent intent with which it was done. Both these facts are distinctly averred, and present, triable issues, and this is all the law requires. We have examined with care all the cases cited by appellees’ counsel which are supposed to be inconsistent with the conclusion here reached, but we find nothing in them that,, in our judgment, warrants such an inference. It is true the-language of the opinions in some of them is quite broad, yet-when limited, as it must be, to the facts in the particular case, it is entirely consistent with the conclusion here reached. Most of the cases in this court bearing upon the question are-mainly based upon Hovey et al. v. Holcomb et al. 11 Ill. 660. But even in that case, which may be regarded as the leading-one on the subject in this State, this court holds the following language: “It may sometimes be a sufficient averment of fraud to say that a certain specified act was fraudulently done, or that it was fraudulent, without showing how it was fraudulent. ” The case in hand evidently falls directly within the class of cases here alluded to. As to the form of the replication, it is in strict conformity with the precedents, and we see no objection to it in that respect. 3 Chitty’s Pleadings, *1168. It is further objected that the deed of assignment, having been properly filed and recorded in the county court, and that court having necessarily recognized its validity in appointing new trustees under it, its validity can not he questioned in a mere collateral proceeding, as is sought to be done here; that by reason of such action of the county court its validity became res judicata, and hence it can only be attacked by a direct proceeding for the purpose of setting it aside. We do not concur in this view, nor do we think the authorities cited by counsel in its support sustain it, and there is certainly nothing in the statute that justifies such a conclusion. It is clear appellees’ right to the attached property depended solely upon the validity of the deed of assignment, and it is equally clear that if it was made, as is alleged in the replication, with the intent to defraud the creditors of Willard, it was void and inoperative as to such creditors. We are therefore of opinion the replication presented a valid defence to the case made by the interpleader, and that the court erred in sustaining the demurrer to it. Nevertheless, we do not think the judgment should be reversed for that reason. Under the general traverse of the interpleader the appellant had the right to' prove any fact which could properly have been given in evidence under the special replication, and she could not therefore have been injured or prejudiced by the ruling of the court upon the demurrer. It is sufficient in all cases that there is one issue in the cause under which a given defence may be proven. That was the case here. Zirkel v. Joliet Opera House Co. 79 Ill. 334. The point is also made that the court erred in admitting the deed of assignment in evidence, against the objections of appellant. The grounds of the objection are two-fold: First, that the deed was acknowledged outside of the State; and second, that the certificate of acknowledgment is insufficient in this, that it does not state the grantor appeared before the notary in person. The first section of the act of 1877, under which the assignment was made, provides, among other things, that “every assignment shall be duly acknowledged and recorded in the county where the person or persons making the same reside, ” etc. The deed in question was, as we have already seen, duly recorded in Union county, where Willard resided; but the contention of appellant is, that it should also have been acknowledged there. We do not think that this is a fair or reasonable construction of the language cited. While the object of the legislature in requiring the deed to be recorded in the county where the assignor resides, etc., is quite apparent, yet no possible reason is perceived for requiring it to be acknowledged there. The place of acknowledgment would therefore seem to be wholly inconsequential, and to limit it to a particular place would certainly, in many cases, lead to great inconvenience, and in some would probably operate as a denial of the right of a failing debtor to make such an assignment at all. A construction which would lead to such results ought not to be adopted unless the statute plainly and imperatively demands it. We do not think it does in this case. Had a comma been inserted after the word “acknowledged, ” as it should have been, no one would have thought of that word being limited by the qualifying member of the sentence, “in the county where the person or persons making the same reside,” etc., and we are of opinion that sound reason and public convenience alike require the provision in question to receive the same construction as if the comma had been so inserted. We therefore hold that the requirements of the statute were fully met by the recording of the instrument in Union county,—the place of Willard’s residence. In respect to the sufficiency of the acknowledgment, we do not deem it necessary to enter'into an elaborate discussion of the question, or upon a review of the authorities relating to it, but will content ourselves with stating, in general terms, that we regard the certificate sufficient. It states that Willard was personally known to the notary, and that he appeared before such notary and made the acknowledgment in question. We think the fair inference is, that the party making the instrument did appear in person before the notary, though it is not expressly so stated in the certificate; and without expressing any opinion as to whether this would be sufficient under our Conveyance act, we have no hesitancy in holding, as we do, that it is a substantial compliance with the act relating to voluntary assignments. It is further objected that the court erred in admitting the deposition of Willard in evidence, for the purpose of proving that the moneys attached belonged to him individually, and not to him and Patterson, as partners. The argument is, that Willard & Patterson having been sued as partners, and the existence of the partnership being admitted by them upon the record, Willard could not, on his own behalf, introduce evidence to disprove it, and as the assignees claim through him as mere volunteers, they have no rights in this respect which he himself could not exercise. The argument is manifestly unsound. It leads to this: that one, after having made a valid assignment of his property for the benefit of creditors, might, by failing to make a proper defence when sued by a stranger in respect to it, defeat the assignment altogether. It is not within the power of the insolvent debtor in such case, by any action or non-action of his, in pleading or otherwise, to defeat the claims of the creditors under the assignment. As between the appellant and Willard, as a party defendant in the attachment suit, the evidence objected to would clearly have been incompetent, on the ground suggested by appellant’s counsel. But the evidence was not offered in that case, nor at the instance of Willard. The filing of the interpleader was, in effect, the commencement of a new suit by parties claiming adversely to both the plaintiff and defendants in the attachment suit, for the enforcement of rights which accrued, if they have any existence at all, long before the commencement of the attachment proceeding, and to hold that the rights of the creditors thus accruing could be prejudiced by anything Willard might do or neglect to do in the attachment suit, would certainly be a startling proposition, and one to which we can not for a moment yield our assent. Upon a careful consideration of the instructions, we find no substantial error requiring a reversal. Some of those given on behalf of appellees are, considered as general propositions, subject to criticism, but as applicable to the evidence before the jury, and the controlling issue in the case, the appellant could not have been prejudiced by them. As to appellant’s refused instructions, we think they either announced a wrong principle of law, or were calculated to mislead the jury, and were therefore properly refused. The truth is, the case was tried and decided by the jury upon a sharp issue of fact. Whether the attached property belonged to appellees, as charged in the interpleader, depended upon whether or not Willard & Patterson were partners in the grain trade. Appellant maintained that they were, and appellees that they were not. This was the frictional point in the case, and the one upon which it turned. The proofs in other respects were formal, merely. Upon this issue the jury found in favor of appellees, and their finding has received the sanction and approval of the circuit and Appellate courts, and, as already indicated, we discover no error in the proceedings of the trial court which we regard as having contributed to this result, and we are therefore not permitted to interpose. The judgment will be affirmed. Judgme!lt aJirmed.