Uhre v. Melum

Wilson, J.

The answers of the defendants having been put in under oath, were, so far as responsive to the bill, evidence for tlie defendants, and were sufficient, we think, if not disproved, to' have prevented the relief sought. The burden of disproving them was upon the complainant. After a careful consideration of the evidence, we should have much difficulty in holding, even if the complainant’s case were free from obstacles in other respects, that the answers were overcome, corroborated as they were by other evidence. But as the case is to be reversed upon another ground, it is unnecessary to express a definite opinion on that subject in the present appeal

There is no averment in the bill that the complainant was a creditor of the defendant, Anders B. Uhre, at the time of the conveyance of the property by him to' Finney and by the latter to Johanna Uhre. It is a rule of general application in all pleadings, that the plaintiff must aver every material fact necessary to his cause of action. 1 Chit. Pl. 270. In Mitford and Tyler Pl. and Prac. in Eq., 152, it is said: “A bill of this nature must state the matter touching which a discovery is sought, the interest of the plaintiff and defendant in the subject, and the right of the first to require the discovery from the other.”

In Montz v. Hoffman, 35 Ill. 533, and again in Merrell v. Johnson, 96 Ill. 224, the rule is stated thus: “ To impeach such a conveyance successfully, it devolved upon the complainants to aver and prove that they were creditors at the time, and that the grantor was then insolvent, etc.” See also, Koster v. Hiller, 4 Bradwell, 21.

Here there was not only no allegation that complainant was a creditor of Uhre at the time of the conveyance to the wife, but none that he was insolvent, unless the allegation that he “ was heavily indebted and was deemed insolvent” is to be taken as an allegation of insolvency. By whom he was so “ deemed ” is not stated. A person may be heavily indebted and at the same time be entirely solvent.

We are of opinion that the bill was fatally defective in not averring that complainant was a creditor at the time of the' conveyance of the property in question by Uhre to his wife. The decree is therefore reversed, and the cause remanded to to the court below.

Reversed and remanded.