Weare Commission Co. v. Druley

Mr. Justice Gary delivered the opinion of the Court. Omitting what is irrelevant to the questions to be decided, this case is that the appellant commenced September 3,1890, an action of assumpsit against William M. Druley and Albert A. Druley, who were brothers and partners, and sued out an attachment which was levied upon land of William. On the trial the court instructed the jury to find for the defendant on the issue formed upon the attachment. Whether that was error is the principal question. September 5, 1890, William died, after being sick several months. August 19, 1890, he had executed and placed in the hands of another brother, Edwin, a deed to the land, with -instructions to carry it in his pocket, and if William got well return it to him, and if he did not get well to put it on record. William was indebted to his father, Jesse, who had let him have about $18,000 more than five years before, and on account of that indebtedness had, March 10, 1887, made to his mothei’, Jane, a note for $10,000, payable five years after date, with interest at six per cent, payable quarterly. The deed was to Jesse in trust for Jane, and there was no consideration for it other than this indebtedness, and no agreement, unless implied, that the deed should be payment of or security for the indebtedness. The note remained in the mother’s possession. If the deed could have any effect it would probably be as security, but did it take effect at all? Edwin did put it on record September 2, 1890, but that was contrary to his instructions. The intention of William was that it'should have no effect during his life; that if he recovered from his then sickness the deed should be returned to him. It seems difficult to construe such a transaction as amounting to a delivery. Provost v. Harris, 36 N. E. 958; Washburn, Real Property, Vol. 3, 285 et seq.; Cook v. Brown, 34 N. H. 460. In the whole evidence there is not a scintilla that William intended any fraud upon his creditors, but the appellant insists that a deed absolute, which is only security, is fraud u-lent per se, as containing a secret trust—a right to redemption—for the grantor. Such a doctrine is quite inconsistent with the numerous cases in this State permitting redemptions from such deeds; for if fraudulent jper se the court would leave the parties where it found them. In the first case cited by the appellant to this point, Metropolitan Bank v. Godfrey, 23 Ill. 579, such a redemption was allowed. It can hardly be disputed that such a deed may be consistent with absolute honesty in the heart of the maker. Now the doctrine of this court is that the fraud for which an attachment will hold, is fraud in fact; that the debtor intended a fraud. Rhode v. Matthai, 35 Ill. App. 147. We hold that instruction not error. After the death of William, the plaintiff amended by discontinuing as to Albert and substituting Mary A. Druley, administratrix of William, as sole defendant, and upon her pleas the case was tried. She has assigned some cross-errors upon the judgment against her upon the merits. But as the attachment is gone, and the indebtedness indisputable, and the estate of William insolvent, it is not worth ivhile to treat of them. We should overrule them if we did. The judgment is affirmed.