Willard v. Masterson

Per Curiam: The first contention of the plaintiffs in error is, that the sheriff’s sale of the lots was irregular and passed no title, for the reason that the judgment debtor had divested herself of all interest and title in the lots. It is true, the deed of Mrs. Willard and husband to Mrs. Snyder was good and effective to pass the title of the debtor as against her and all the world, except dona fide creditors. This doctrine has been repeatedly announced by this court. (Moore v. Horsley, 156 Ill. 36; Hallorn v. Trum, 125 id. 247; Springfield Homestead Ass. v. Roll, 137 id. 205; Tyler v. Tyler, 126 id. 525; Rappleye v. International Bank, 93 id. 396.) When a judgment debtor has no title of any kind, it would seem that the creditor cannot acquire title by a levy and sale under execution against such debtor. Whether this rule applies to cases of fraudulent conveyance there is a variance of opinion. In some of the authorities it has been held, that when a debtor procures a conveyance to be made to another in secret trust, the creditor’s remedy is in equity, and not by levy and sale on execution. (See Wait on Fraud. Con. secs. 51, 57.) When the legal title has'been in the debtor so as to be subject to execution at law, and could be made available for the satisfaction of the judgment but for the fraudulent conveyance, the creditor, or a third person having taken title under a sheriff’s sale, may bring ejectment and avoid the conveyance by proof of the fraudulent purpose for which it was made. (Ibid.) The judgment creditor in this case had the right to sell the lots under execution, notwithstanding they may have been fraudulently alienated. She had the right to treat the deeds of Mrs. Willard as nullities, and hold the property to levy and sale under her execution the same as if such transfers had not been attempted. (Wait on Fraud. Con. sec. 59; Thomason v. Neeley, 50 Miss. 313.) In such case the creditor may treat the debtor as the owner of the property, and pursue his proper remedy at law as if the title were unembarrassed by the pretended deed. In Gallman v. Perrie, 47 Miss. 131, the court says the jurisdiction of a court of equity is ample, either before or after a sale under a judgment, to set aside a deed made in fraud of creditors,—before sale, in order that the creditors may realize the full value of the property by offering an unembarrassed title to bidders; after sale, so that the clouds which obscure, and which, if permitted to remain, might endanger it, may be put away. (McKinney v. Farmers’ Nat. Bank, 104 Ill. 180.) In Gould v. Steinburg, 84 Ill. 170, this court expressly held that a creditor of a fraudulent grantor may, after a levy upon the land and sale and sheriff’s deed to him, file a bill in equity and have the fraudulent deed set aside. The master in chancery to whom the case was referred to take the evidence and report conclusions of both law and fact, found the two deeds of Mrs. Willard to Anna T. Snyder of lots 24 and 25, and the transfer of the Delsing judgment, to be fraudulent and without consideration, and that such deeds and transfer were made to hinder and defraud Mrs. Petitt in the collection of her judgment. We think the several conclusions of the master are fully sustained by the evidence. It is also contended that lot 25 was the homestead of Mrs. Willard at the time of the levy and sale, and therefore such lot was exempt from forced sale. This depends upon the fact whether the Petitt judgment of February 6, 1892, became a lien on such lot before Mrs. Willard and family made the same their homestead. It appears that Mrs. Willard conveyed the lot to Sarah E. Clark by deed dated January 2, 1892, and recorded January 22 of the same year. Sarah E. Clark on February 23, 1892, re-conveyed the lot to Mrs. Willard, which deed was recorded February 26, 1892. If the property (lot 25) ever was the homestead of Mrs. Willard, she lost the same by her deed of January 2, 1892, to Mrs. Clark and giving possession under the deed. If a party makes a deed of property in which he has a homestead, and shortly thereafter moves from the premises and surrenders possession to the grantee, this will amount to an abandonment and extinguishment of the homestead estate. (Eldridge v. Pierce, 90 Ill. 474; Pitman v. Moore, 43 id. 169.) After the judgment became a lien upon the lot the debtor could not acquire a homestead as against the judgment. (Hook v. Richeson, 115 Ill. 431; Symonds v. Lappin, 82 id. 218.) The finding of the master as to the question of homestead is sustained by the evidence. Finding no error the decree of the circuit court is affirmed. Decree affirmed.