Rindskoph, Stern, Lauer & Co. v. Kuder

Mr. Justice Wilkin delivered the opinion of the Court : This was a creditor’s bill, filed by appellants against appellees, Susana Kuder, and Christopher L. Kuder, seeking to set aside a conveyance of real estate made by Christopher L. to Susana, his mother, February 5, 1890. Prior to January 4, 1890, Christopher L., together with one Braden, was engaged in the mercantile business, in Gifford, Champaign county, under the firm name of Kuder & Braden, and became indebted to appellants in the sum of $2,500, and to other parties in various sums. The firm of Kuder & Braden failed about the 12th of January, 1890. On the 14th of that month Lewis Kuder, a resident of Champaign county, and father of Christopher L., died testate, seized in fee of 856 acres of land, situated in said county, and also a considerable amount of personal property. By the terms of his will he provided as follows: 1st. For the payment of indebtedness, appointment of executors, etc. 2d. “After the payment of my said debts, and funeral expenses, I give to my wife, Susana- Kuder, and to my children, each, Albert L. Kuder, and Christopher L. Kuder, all the rest of my real and personal estate, share and share alike, and to their heirs respectively, with the right to sell any and all of said real and personal estate.” 3d. “I give and devise to my wife, Susana Kuder, the land on which the homestead, including dwelling house and barn, * * * (describing the land, one hundred and sixty acres), for her use absolutely.” On January 18, 1890, appellants brought suit in the Circuit Court of Champaign county, against the firm of Kuder & Braden. On January 27, 1890, the will of Lewis Kuder was probated. On February 5, 1890, Christopher L. Kuder made a deed conveying his interest in the land described in the bill to his mother. On March 11, 1890, appellants recovered judgment against Christopher L. Kuder for $1,200, and upon execution duly returned, no property found, on July 3, 1890, filed this bill to set aside said conveyance by Christopher L. Kuder to Susan A. Kuder, charging that it was made with the intent to hinder and delay the creditors of Christopher L. Kuder. Afterwards other creditors of Kuder filed intervening petitions. The cause was heard on bill, answer, replication and evidence reported by the master, and a decree entered dismissing the bill at the complainants’ costs. This is an appeal from a judgment of the Appellate Court affirming that decree. The only question involved in the case is one of fact, viz. : Was the conveyance, sought to be set aside, made with the intent to disturb, delay, hinder or defraud the creditors of the grantor? On the hearing, counsel for appellants introduced appellees as witnesses on their behalf. Susana Ruder testified, in substance, that she loaned Christopher L. $3,000 in September, 1883, and that the conveyance to her was made to pay that debt, she giving Christopher L., in addition thereto, her conditional note for $1,000. Lewis Kuder, at the time of his death, owed large sums of money, the amount of which was not known at the date of the deed, and the condition upon which she was to pay the $1,000 note was “that if any of the land had to be sold to pay those debts the note should be proportionally reduced.” Both she and Christopher L. testified that there was no fraud in the transaction; that the alleged debt was bona fide and the deed was made in good faith, in consideration of that debt and conditional note. This was all the testimony offered in regard to the making of the deed. Counsel for appellees contends that appellants, having made these parties their own witnesses, can not be heard to discredit them; that by calling them to testify in their behalf they vouch for their character and truthfulness, and cite, in support of the position, Hill v. Ward, 2 Gilm. 285; Griffin v. City of Chicago, 57 Ill. 317. While we agree that the proposition contended for is, as a general rule, correct, it has only a qualified application to the evidence in this case. Appellants are not bound by the mere conclusions of these witnesses; and only by their statement of facts, in so far as they are entitled to credit, taking into consideration the i-easonableness of their testimony, and all other proper tests of the credibility of witnesses, and the weight of their evidence. Bell v. Devore, 96 Ill. 217; Mitchell v. Sawyer, 115 id. 657. But they are not concluded by the evidence of these or any other witnesses introduced by them. “The rule is, if a witness state facts against the interest of the party calling him, another witness may be called by the same party to disprove those facts, for such facts are evidence in the cause, and the other witness is not called directly to discredit the first, but the impeachment of his credit is incidental only and consequential. 2 Phil. Ev., 448”. Rockwood v. Paundstone, 38 Ill. 201. The difficulty with appellants’ case does not arise from any rule of evidence precluding them from disproving the facts stated by appellees, but from the fact that they were unable to offer any affirmative proof to support the allegations of their bill. All the direct testimony in the case is to the effect that the conveyance was for a valuable consideration, and made in good faith. Conceding that some of this evidence is entitled to but little credit, being merely the conclusions of the witnesses, yet if all that evidence should be disregarded, there would be no evidence in the record upon which to base a decree granting the relief prayed in the bill. The contention of counsel for appellants, that the value of the land conveyed by this deed is so greatly in excess of the consideration paid for it by Mrs. Kuder, as to amount to evidence of fraud, is not supported by the evidence. It will be observed that the conveyance does not include all the real estate of which Lewis Kuder died seized. If Christopher L. Kuder has any interest under the will of his father in the 160 acres, the use of which is given to Susana, that interest is undisposed of by this conveyance. The value of the lands conveyed, as shown by a fair estimate of all the evidence on that issue, taking into consideration the amount of debts of the deceased chargeable against it, is not in excess of the consideration paid for it. At least there is no such disproportion between the value of the interest conveyed and the consideration, as to amount even to slight evidence of fraud. The relationship existing between the grantor and the grantee in the deed is, of course, to be considered in connection with all the other facts and circumstances in the case, but is not a controlling fact.' As we understand the evidence in this record, the position of appellants could only be sustained by casting the burthen of proof upon appellees, to establish the fairness of the conveyance; in other words, to disprove the allegations of the bill, which, of course, can not be done. The judgment of the Appellate Court will be affirmed. Judgment affirmed.