Peterson v. Nehf , 80 Ill. 25 ( 1875 )

Mr. Justice Sheldon

delivered the opinion of the Court:

This was a creditor’s bill, filed by Hehf, to cancel deeds of a certain lot of land, executed by Charles Peterson to William B. Weibolt, and by Weibolt to Catharine Peterson, wife of Charles Peterson, as in fraud of creditors, and without consideration, and to subject the property to the payment of complainant’s judgment against Charles Peterson.

The court below decreed in favor of the complainant, and the defendants appealed.

It appears, that in 1868 Charles Peterson purchased the premises in controversy—lot 25, in block 2, in Henry Waller’s subdivision of the north-west quarter of the north-east quarter of section 20, etc.—and borrowed from Hehf $800 to pay toward the purchase money, and the latter erected a house for Peterson on the lot, and took his notes therefor. Hehf afterward bought, at Peterson’s request, his partner’s half of a grocery, for $1600, and became partner of Peterson in the store. In 1872, Peterson agreed to sell said lot to Hchf for the latter’s one-half interest in the store, $1000 cash, and payment of the notes held by Behf against Peterson.

Peterson got the store, and made Helif a deed for the lot, executing the deed, at the request of Melif, to Philip Lehman, a brother-in-law. Mrs. Peterson refused to join in the deed, and, subsequently, filed a bill to cancel this deed, she claiming the property by deed from her husband to Weibolt and from Weibolt toher, in 1871, prior to Lehman’s deed from Peterson, and she succeeded in her bill. Hehf then obtained judgment against Peterson on the notes against him, and on the 9tli of February, 1874, filed the present bill.

It would seem to be sufficient for the disposal of this case, that there has been, as we regard, a previous adjudication of ' this subject matter of controversy.

Catharine Peterson, on March 29,1872, filed her bill of complaint in the circuit court of Cook county, against Philip Lehman, setting forth that she was the owner in fee of this lot, and acquired title by deed from Weibolt, August 14, 1871; that in December, 1871, PTelif, through his brother-in-law, Lehman, attempted to purchase the property of her, and succeeded, against her will and consent, in getting her husband to sign the deed, and with his signature alone to it they put the deed on record; that it was a cloud upon her title, and its removal was asked for.

It was set up in defense by Lehman, that the conveyance of the lot from Peterson and wife to Weibolt, and from Weibolt to Catharine Peterson, was fraudulent as to the creditor PTehf, in whose behalf Lehman made defense, on the ground that he had assumed to pay PTehf what Peterson owed him, and thus stood in the place of PTehf. Lehman, too, afterward, filed his bill of complaint against Peterson and wife, Weibolt, and PTehf, seeking to get from Catharine Peterson the same land, setting up fraud in the conveyance thereof to Weibolt, and from him to Catharine Peterson.

Issues were made on the facts respectively set up, and both causes heard together, and upon final hearing the court decreed in favor of the complainant in the first named bill, finding the property to be the sole and separate estate of Catharine Peterson, and ordering the cancellation of the deed procured by PTehf, in the name of Lehman, from Peterson, and ordering a reconveyance of the premises to Catharine Peterson, and a decree was rendered dismissing the last named bill of Lehman. Lehman was but a trustee of PTehf. The attorney for Lehman,’ in the former suits, testified that he appeared for Lehman in those suits, and that he was also acting for PTehf. PTehf was present at the hearing, and was a witness. We think that in the former suits, under the evidence, Lehman should be regarded as representing PTehf, and that the decrees therein should be held to be equally binding upon PTehf as upon Lehman.

This appears to be but a re-opening of the same question which has been once decided, namely: whether or not this was a fraudulent conveyance to Mrs. Peterson, as against creditors. The former decision, in favor of its validity, we think, should • be held as conclusive between these parties.

An error of description in the quarter-quarter section of the subdivision of Waller, which has been adverted to as occurring in some of the deeds—describing it as of north-west quarter of the north-west quarter, instead as of north-west quarter of the north-east quarter—we regard as of no moment. It was but an immaterial circumstance of description. The lot would have been sufficiently identified by describing it as situate in Henry Waller’s subdivision simply. It was the same identical property which was conveyed, and which was in controversy throughout.

The decree will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.