Hutchinson v. Croarkin , 87 Ill. App. 557 ( 1900 )

Mr. Presiding Justice Horton

delivered the opinion of the court.

A voluntary conveyance alleged to be fraudulent as against creditors is valid and binding except as to one who was a creditor at the time such voluntary conveyance was made. Mixel v. Lutz, 34 Ill. 382; Tunison v. Chamblin, 88 Ill. 378. The judgment in question ivas not recovered until two years after the alleged fraudulent transfer of stock to appellant. But the claim of appellee had existed since 1891. It was for damages growing out of a personal wrong or tort. A person having such a claim is a creditor of the tortfeasor within the meaning of the statute of frauds. Bougard v. Block, 81 Ill. 186; Anglo-American Co. v. Baier, 31 Ill. App. 653, 657. The rules of law applicable to this case are well settled. The important question to be determined is whether issuing the capital stock in question to appellant, was fraudulent as against the rights of appellee.

There was never any agreement by which Mr. Hutchinson was to have any interest, as partner or otherwise, in said boarding house business. But it is contended by counsel for appellee that facts and circumstances appearing in the testimony show that he had such interest.

Appellant was called by appellee and examined as a witness. It appears that she answered all questions propounded to her fully and fairly and without evasion. There is no attempt to impeach or discredit her. Neither is there any testimony seriously conflicting with her statements as to any material fact. She testified that in 1892, after he had failed in his other business ventures, Mr. Hutchinson first undertook the management of the Gresham Hotel and assisted her—that up to that time she had herself managed the business—and that the business did not increase under his management. The testimony does not sustain the contention that Mr. Hutchinson ever put any definite amount into the business, or that he ever in fact contributed anything thereto, other than personal services, and that he had the support of himself and his three children. It does not appear that any accounts were kept as between Mr. Hutchinson and appellant. He and his children lived in the boarding house with her, and up to 1889 he probably contributed more or less toward the family expenses, but nothing since, other than, his services. True, he joined with her in a lease or in leases oí property used as a boarding house or hotel, and for a time the proceeds of the business were deposited in bank in his name and checked out in paying bills in connection with the business. We do not find that any of his separate money went into the business through the bank deposits.

The factis he never had any money of1 his own to put into the business after some time during the year 1889. When he worked, his salary was $20 per week, with which to support his family. He lost in business ventures as much as he received for real estate sold. It does not appear that the business was ever conducted in his name, or in the name of any partnership of which he appeared to be a member. Appellant swears that “ Mr. Hutchinson never had any interest in ” the Gresham Hotel.

As stated, Mr. Hutchinson has never contributed any money or property to said business since appellee became a creditor. Appellee never extended any credit to Mr. Hutchinson upon the faith of his alleged interest in said business. Appellant established and owned the business. The fact that Mr. Hutchinson worked for and assisted appellant in the management of said business does not of itself constitute him a partner or establish the contention that he was financially interested in said business.

The prayer of said bill is that appellant and the other defendants therein named “ may be required upon their several and respective corporal oath * * to full, true, direct and perfect answers make to all and singular the matters and things herein (therein) before stated and charged, and especially ” as to many matters then in said bill of complaint and at length stated and set forth. And further “that the defendants may also several answer make to ” the interrogations thereinafter “ numbered and set forth.” Then follows prayer for process commanding the defendants to appear, etc., “ then and there to answer this bill, etc., but not under oath (answer under oath being hereby waived).”

The defendants answered under oath. That seems to bring this case within the rule that material averments in the bill which are denied by the answer must be proven by the testimony of two witnesses or that of one witness and corroborating evidence equal to that of another.

But upon the merits of the case and aside from the question as to the effect of the answers under oath the bill should be dismissed for want of equity.

The decree of the Circuit Court is reversed and remanded with directions to dismiss said bill for want of equity. Reversed and remanded with directions.