Johnson v. Huber

Mr. Justice Wilkin

delivered the opinion of the Court:

As amended, this was a bill by appellee, as a judgment -creditor of appellants Johnson and Fredericka Nolan, and one Gesch W. Elsen, to set aside an alleged fraudulent conveyance ■of certain lots in the city of Alton, to appellant Thomas Nolan. The bill alleges the recovery of a judgment against said John T. Johnson, Fredericka Nolan and Gesch W. Elsen, at the ■October term, 1886, of the circuit court of Madison county; also, that on August 16, 1886, after contracting the indebtedness on which said judgment was rendered, they jointly ■conveyed the- said lots to said Thomas Nolan, who, with said Fredericka, his wife, executed and delivered, at the same time, -a mortgage on said premises, to secure the payment of a promissory note for $1000, payable to said John T. Johnson,— which mortgage and deed were each executed with intent to hinder and delay complainant and other creditors of the said Gesch W. Bisen, John T. Johnson and Frederieka Nolan; that said Gesch W. Bisen owned but a life estate in the conveyed premises, and that said Johnson and Bredericka Nolan were the owners thereof in fee, subject to said life estate; that said Gesch W. Bisen died in July, 1887. The original bill was filed September 14, 1887.

The defendants, by their joint answer, admitted the recovery of a judgment against John T. Johnson and Bredericka Nolan by appellee, but say nothing as to Gesch W. Bisen being a party thereto. They admit the execution of the deed and mortgage, as alleged in the bill, but deny that they were fraudulent, or intended to delay complainant or other creditors of the grantors, and aver that they were each made in good faith, for a valuable consideration.

A decree was rendered setting aside the deed and mortgage, and subjecting the interests of said Johnson and Bredericka Nolan in said lots to the payment of said judgment. On ap-' peal to the Appellate Court for the Fourth District that decree was affirmed, and appellants now bring the record to this court.

One ground of reversal insisted upon is, that the representatives of Gesch W. Bisen, one of the judgment debtors, and also one of the grantors in the alleged fraudulent conveyance, were necessary parties to the bill. We think the point is well taken. While the bill shows that the said Bisen had but a life estate in the lots conveyed, and upon her death Johnson and Bredericka Nolan would have become the absolute owners thereof, and therefore the decree prayed for would affect no interest of hers in the property, it also shows that she was a joint grantor in the deed sought to be vacated. That deed, as appears from the evidence, was a deed with covenants of title, by which the grantors, John T. Johnson, Gesch W. Bi-sen and Bredericka Nolan, jointly conveyed to Thomas Nolan the lots in question. It was expressly held by this court in Spear v. Campbell et al. 4 Scam. 426, that in a bill like this the judgment debtor, and grantor in the alleged fraudulent conveyance, was a necessary party, and it was there said: “The payment of judgments recovered against him was sought to he enforced out of property which he had conveyed with covenants of title, apparently for a. valuable consideration, and without fraud or collusion. He ought, under such circumstances, to have an opportunity of showing that the judgment had been paid or otherwise discharged. He should be permitted to contest the right of the complainants to the peculiar remedy they were pursuing. He might be interested in sustaining the conveyance which he made, and he certainly should be allowed the privilege of insisting and proving that it was made in good faith, for a valuable consideration, and without any design to defraud the complainants, or hinder or delay them in the collection of their debts. A decree invalidating his conveyance might result in an eviction of his grantee, who would turn upon him, and seek to make, him liable for the failure of title.”

This doctrine has never been overruled or modified. Under it, Gesch W. Bisen, if living, would unquestionably be a necessary party, not because any interest she had in the land could be taken to pay said judgment, but because, by reason of the covenants in her deed, she would be interested in sustaining the conveyance. For the same reason her representatives are necessary parties. The fact that both parties to the deed may have known that she had but a life estate in the premises conveyed, would not affect Nolan’s right to recover on her covenants of title, if he should be ousted under this decree. Morgan v. Smith, 11 Ill. 191; Beach v. Miller, 51 id. 206.

It is true, that by the rules of correct practice the objection to the bill for want of proper parties should have been raised by demurrer, plea or answer; but where the omitted party is-not only a proper but a necessary one, so that a final decree can not be rendered without affecting his or her interests, the objection may be taken at the hearing, or on appeal or writ of error. 1 Daniell’s Ch. Pl. and Pr. p. 285, note 2; Spear v. Campbell et al. supra; Farmers’ Nat. Bank v. Sperling, 113 Ill. 281.

We think the Appellate Court was clearly right in holding that the circuit court committed no error in overruling the motion to dismiss the bill for want of a cost bond. Also, in holding that complainant could maintain the bill in her own name, although, if phe was a feme covert residing with her husband in another State at the time she filed her bill, it would be advisable to join her husband as complainant.

As the decree below must be reversed for want of proper parties defendant, no good purpose would 'be subserved by expressing an opinion as to other objections made to the proceedings in the circuit court, especially since they may be avoided on another hearing.

The judgment of the Appellate Court will be reversed, and the cause remanded to the circuit court of Madison county.

Judgment reversed.