Hill v. Siffermann

Mr. Justice Scott delivered the opinion of the court: The only defense to the bill insisted upon in this court is indicated by the following language quoted from the brief and argument of the appellant: “Appellant submits as the salient features of this case these facts: That she is the creditor of her husband to the extent of $3000, and was such creditor before the existence of the indebtedness from her husband to appellee. * * * These being the facts, we submit as the law that appellant’s husband had a right to prefer her to his other creditors; that the equities of appellant and appellee being equal from the standpoint most favorable to appellee, the prior legal right of appellant must prevail,” etc. The same contention was made in the Appellate Court, and that tribunal, after a careful consideration of the evidence, arrived at the conclusion that Mrs. Hill held no indebtedness against her husband which was en-forcible at the time the conveyance to her was made, and it is now earnestly insisted that in so finding the Appellate Court erred. We are of the opinion that it is not necessary to determine whether appellant was a bona fide creditor of her husband at the time she took title to the Hermitage avenue property. The defense interposed in the superior court appears from the following language, quoted from the answer as that document is abstracted by appellant: “That the premises described in the bill of complaint were bought with money that was the sole and exclusive property of Minna Hill, and the title to said real estate was taken in the name of Charles J. Hill under an agreement between him and Minna Hill that he would at any time convey same to her when requested, or to any person to whom she should request a conveyance; that Minna Hill requested said Charles J. Hill to convey said premises to her, as he was in duty bound to do, and that in pursuance of said request the said Charles J. Hill, as trustee for her, agreed to convey the legal title to her, and thereupon, in order to effect the transfer of the legal title to said premises, as aforesaid, the conveyances set forth in the bill of complaint were made and executed, and ever since the purchase of said premises with the money of said Minna Hill she had been in the actual possession of the same and had been collecting the rents arising therefrom (except the part thereof used as a family residence) for her sole use and benefit, and that no money consideration passed with reference to said conveyances, and that said conveyances were not made to prevent said premises being subjected to the lien of any judgment against Charles J. Hill or to prevent his creditors from having recourse to said real estate to satisfy their claims, and they deny that said conveyances were a fraud upon the rights of the complainant, and pray to be dismissed at complainant’s costs.” It does not appear from this answer that appellant was at any time the creditor of her husband. The manifest purpose of the appellant in the supérior court, so far as it can be gleaned from this answer, was to establish the fact that the property was held in trust for her by her husband. She did not in that court, by her pleading, seek to show that the property had been conveyed to her in payment of any indebtedness due to her from her husband. She will not be permitted to prevail in this court by showing that the evidence established a defense to the bill which was not interposed by the answer. Crone v. Crone, 180 Ill. 599. As appellant does not contend, by her brief and argument, that the judgment of the Appellate Court should be reversed for the reason that the Hermitage avenue property was held in trust for her by her husband, that defense to the bill must be regarded as waived in this court. The judgment of the Appellate Court will be affirmed. Judgment affirmed.