McCann v. O'Connell , 1894 Ill. App. LEXIS 78 ( 1894 )

Mr. Justice Gary

delivered the opinion of the Court.

December 24, 1891, the appellant filed her bill to remove, as a cloud upon her title, some judgments.

She claimed title under a deed from Thomas McCann to her husband, James McCann, dated January 14, 1889, recorded April 15, 1891, and a deed from her husband to herself dated and recorded June 16, 1891.

O’Connell is the assignee of some judgments against Thomas McCann, on which he claims, however, much less tlian the nominal amount due upon two of them, one rendered October 4,1888, for $600, in favor of Timothy E. Ryan, and one rendered April 26, 1889, for $1,006.70, in favor of Philip Best Brewing Company. John McGovern has a judgment for $433.40 against Thomas McCann, rendered March 4, 1891.

All these judgments appear, therefore, to be liens upon the land, being rendered before the deed from Thomas Mc-Cann to James McCann was recorded.

The defendant seeks to have them removed, not by reason of any equities in her favor or in favor of her grantor, her husband, against the judgments, but upon the ground that February 19, 1889, her husband filed a bill against the wife of Thomas McCann and several others, but not bringing Eyan into the suit, on which bill a decree was entered in favor of her husband. The judgments in favor of the brewing company and McGovern were entered while that suit was pending, the decree therein being entered May 5, 1891.

Mow it is perfectly indifferent what may have been the object of the bill by James McCann .against the wife of Thomas McCann. Mo decree in that suit, Thomas McCann not being a party to it, would affect his judgment creditors, not themselves parties, whether their judgments were obtained before the bill was filed, or pendente lite. Black on Judgments, 534.

And that bill being filed upon a false statement of the relations between Thomas and James McCann, which it would take too much space to demonstrate, no bill to have the benefit of a decree upon it can be maintained. Wadhams v. Gary, 73 Ill. 415.

While the title was in Thomas, James had the possession. Whether that was to defraud the creditors of James, and if so, what figure that cuts as to judgment creditors of Thomas, may be subjects of consideration when the pleadings and evidence present them.

The decree below, however, is wrong in declaring that the judgments mentioned are liens.

All that the appellees were entitled to, was that the bill of the appellant should be dismissed. Mo affirmative relief can be granted upon a mere answer; a cross-bill should be filed. Purdy v. Henslee, 97 Ill. 389.

The decree of the Superior Court is reversed and the cause remanded with directions to dismiss the bill of the appellant with costs.