Spear v. Joyce

Gary, J. This was a suit by attachment, in which the affidavit, traversed by the appellee, alleged that the appellee fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder or delay his creditors. The sixth instruction of the appellee was that the appellants, in order to sustain the issue, must prove by a preponderance of the evidence that the alleged fraudulent conveyance was given with the intent on the part of both the appellee and the grantee to hinder, delay and defraud the creditors of the appellee. This is contrary to the doctrine of Pettingill v. Drake, 14 Ill. App. 424, and Enders v. Richards, 33 Mo. 598. Appellee very ingeniously argues that he could not fraudulently convey, except by a fraudulent conveyance, and that no conveyance is fraudulent unless the grantee participates in the fraud; citing Herkelrath v. Stookey, 63 Ill. 486; Bowden v. Bowden, 75 Ill. 143; Myers v. Kinzie, 26 Ill. 36; Ewing v. Runkel, 20 Ill. 449. These cases unquestionably support the latter branch of his proposition, but they are applicable only where the title of the grantee is attacked. Where only the interests of the grantor are involved, then only his intention is material. The judgment is reversed and the cause remanded. Reversed and rema/nded.