Maddox v. Epler

Opinion of the Court, the

Hon. George W. Wall, Judge.

After a careful consideration of the evidence we are of opinion the proof supports the decree.

The wife had. advanced various sums to the husband from time to time, beginning more than twenty years before the deed which was made to her in 1888. She permitted him to use the money in his business operations and to buy land. The farm in question was purchased six or seven years before it was deeded to her, and while she says she had some sort of an understanding Avitli him that he Avould protect her by putting the land in her name when it Avas paid for, yet Ave think this was too indefinite, and that after she had permitted him to use the money as his oavu and to put land in his oavu name, she can not be heard to set up such a claim as she makes here to defeat a creditor avIio no doubt trusted him on the faith of the property he so held AAdth her knoAvledge and consent.

It is apparent she Avould not have asked for the deed, but for suggestion made by her father, and the apprehension that her husband was in failing circumstances. She did not seem to know much as to his financial condition and suffered him to use her funds Avithout conditions and probably without any fear of mismanagement or failure.

It would be inequitable under such circumstances to permit the deed to stand as against Iona fide creditors Avho were unaAvare of the alleged claim in her favor. Whatever might be the equitable aspect of the matter as between her and her husband she can not complain if such creditors are a,lloAAred to assert a lien upon the property as against her. But it is extremely doubtful whether she could be regarded as her husband’s creditor. She took no note from him, indeed she kept no memorandum of the sums she gave him, and it is by no means certain that she had any intention or that there was ever any definite understanding that he was to account to her, or to secure her for such advances. Hocket v. Bailey, 86 Ill. 74; Frank v. King, 121 Ill. 250; Lowentrout v. Campbell, 130 Ill. 503.

Nor do we think that he retained enough unincumbered property to protect the complainant. On this point the evidence is somewhat confused and conflicting, but we are satisfied with the finding of the decree in that regard.

The point is now made, and evidently for the first time, that the property ordered to be so sold was the homestead of the parties, and therefore that the decree was erroneous in not making provision to protect the rights in respect thereto.

No suggestion of the sort was made in the pleadings, nor does the evidence clearly disclose that such was the fact. Some parts of the testimony seem incidentally to point in that direction, though not with much certainty.

The property is no doubt worth much more than the amount of the complainant’s claim and the value of the statutory homestead, and it is apparent there was no intention of presenting any question as to the homestead upon the hearing of the case, the only contested point being whether the complainant had a right to impeach the conveyances by which the title was placed in the name of the wife. We therefore hold that the question can not now be raised for the first time in this court. Had it been properly presented to the Circuit Court the rights of the parties as to the homestead would have been considered, and the conclusion then reached, if not satisfactory, might have been assigned as error. As the record now appears we can not consider the objection. The decree will be affirmed.