Mason v. Wedekind ( 1909 )

Mr. Justice Brown

delivered the opinion of the court.

It is unnecessary and undesirable in this opinion to discuss the evidence which justified the master in recommending and the court in entering the decree in this cause. It is plain to us from reading it, that Mrs. Ada Wedekind being the owner in fee simple of the premises described in the decree, the title to which she had obtained through a valid sale ordered by the Probate Court, and being threatened with suit on a note which she did not wish to pay, conveyed the said premises (through an intermediate party) to her son, Charles Tagney, to take them out of the operation of a judgment and execution if they should be obtained.

The testimony of the defendants Wedekind and Tagney, by which their theory of the case appeared, was inconsistent, vague and indefinite and by no means overcame the inferences which could legitimately be drawn from the admissions and the circumstances which were also proven by them. In other words, despite that part of the testimony of the defendants which was adverse to the complainant, the complainant principally proved her case by the defendants themselves, in connection with the documentary proof offered. We think the evidence sustains the decree.

As for the insolvency of Mrs. Wedekind when the transfer complained of was made, which it is said was not proven, it was not necessary to prove it in order to attack the conveyance. Keller v. Whitledge, 38 Ill. App. 310; Lobstein v. Lehn, 120 Ill. 549.

It would have been sufficient, under the other findings of the decree, to have found that Mrs. Wedekind was insolvent when the attack was made.

But, moreover, the fact that Mrs. Wedekind had a deposit in the Savings Bank for three days (including a half and a whole holiday) after making the conveyance, could not in any event be used to defeat this decree. The almost synchronous withdrawal of the deposit was indeed a strong circumstance in itself tending to prove the conveyance fraudulent.

The form of the decree providing that the property should be sold by the master, although the special prayer of the bill asks that after the conveyance is set aside, “the sheriff of Cook county be directed to advertise and sell the said premises for the payment and satisfaction of the judgment, interest and costs” in the bill described, is justified under the prayer for general relief by the authority of Illinois precedents.

The doctrine of the early case of Farnsworth v. Strasler, 12 Ill. 483, and of the later one of Davidson v. Burke, 143 Ill. 139, taken together, settles the right of the chancellor in his discretion to make the order about the sale which he did make under the prayer for general relief. It had the advantage of including the costs of the later proceeding in the amount for which the sale was to be made.

We see no ground for questioning in this court on this record the amount of the master’s fees provided for.

The decree of the Superior Court is affirmed.

Affirmed.