O'Neill v. Walsh , 92 Ill. App. 61 ( 1900 )

Mr. Justice Crabtree

delivered the opinion of the court.

This was a bill in equity exhibited by defendant-in error against plaintiffs in error, seeking to have set aside a certain trust deed executed by John O’Neill to Eobert Sharfenberg for the benefit of his sisters and co-defendants, Mary K. and Margaret L. O’Neill and Annie Moriarty.

It appears that on January 16,1882, the defendant in error recovered a judgment in the Circuit Court of Will County against said John O’Neill for $427.27 and costs. An execution was issued on that judgment April 2, 1884, and returned unsatisfied June 30,1884. Prior to the entry of this judgment John O’Neill’s father died intestate leaving him surviving his widow, Mary O’Neill, and six children, being the plaintiffs in errdr and two sons, James and Frank, who are now deceased, leaving no issue or widows surviving them. When Thomas O’Neill, the father of plaintiffs in error, died, he was the owner of real estate consisting of a homestead, being situated in block 14, East Joliet, and also two other lots, 23 and 24, in block 32, School Section addition to Joliet.

On October 9,1891, John O’Neill executed a quit-claim deed to his mother, Mary O’Neill, of his interest in the homestead property, and on October 26, 1891, quit-claimed to her his interest in the other two lots in block 32. She died intestate on June 10. 1895, leaving the four plaintiffs in error as her only heirs at law. On December 3, 1896, John O’Neill executed the trust deed in question to his sisters and co-plaintiffs in error. On December 30, 1897, in a scire facias proceeding instituted by defendant in error to revive the original judgment, judgment was entered against John O’Neill for the sum of $813.77, and an execution issued thereon which was returned unsatisfied. The bill alleges the insolvency of John O’Neill, that the trust deed is fraudulent as against defendant in error, and prays to have the same declared null and void, and the interest of said John O’Neill in said property subjected to the payment of defendant in error’s judgment.

The defense, as disclosed by the answers of plaintiffs in error, is that there was no fraud in the trust deed, but that it was given in good faith to secure the sisters of John O’Neill for the actual expenses incurred by them in the support of John’s three children from the time of the death of his wife in 1882.

The cause was referred to the master to take and report proofs and his findings thereon. The master found in favor of defendant in error and recommended a decree accordingly. The cause was heard on exceptions to the master’s report and a decree entered in favor of defendant in error, setting aside the trust deed.

It is insisted by plaintiff in error that there is no competent proof in the record of any judgment upon which this proceeding was supposed to be based, but the master’s report, which found there was such a judgment, was not excepted to as to that finding, and we think, therefore, the question can not now be raised. But upon the facts we are of opinion the decree can not be sustained. Apart from the mere fact that the conveyance by trust deed was made, the only evidence in any way bearing upon the question of fraud was the testimony of John O’Neill and his sister Annie. They both swear that the trust deed was made in good faith to repay the sisters for the support of John’s three children. After the death of John’s wife in 1882, his three children were taken by his mother and the sisters, the former keeping the house and the latter working out for wages to support the family.

There is no contradiction of this testimony, and we know of no reason why John did not have the right to repay the sisters or secure their repayment" as he swears he promised to do, for the services rendered to him in the support of his children. At the time defendant in error obtained his original judgment, John had his interest in the homestead property which was worth more than §1,000, and also in the other two lots. No reason appears why defendant in error should have waited fifteen years before attempting to make his judgment out of John’s interest in the property, nor why he should have allowed two years to elapse after the death of John’s mother, before reviving the judgment. This delay, unexplained, we regard as inexcusable.

Because of the absence of evidence to establish the alleged fraud, and also by reason of the unaccountable laches of defendant in error the decree will be reversed and the cause remanded with directions to dismiss the bill.

Reversed and remanded with directions.