Bear v. Bear

Opinion of the Court, the

Hon. Carroll C. Boggs, Judge.

At the February term, 1892, of the Circuit Court of McLean County, upon a bill framed under the statute for that purpose, the appellee obtained a decree for separate maintenance against Sebastian Bear, her husband.

Under the same bill by appropriate pleading an issue was made between the appellee and Joseph Bear, the appellant, who is a brother of Sebastian, as to the ownership of certain personal property, chose in action, etc., claimed by Joseph, but which the appellee alleged was the property of her husband.

This issue was tried and determined in favor of the wife, to reverse which J oseph Bear appeals to this court. The ownership of this property is the only question to be determined.

That Sebastian owned the property on the 20th day of November, 1891, when he and his wife separated, is conceded by all. Joseph’s claim is that he purchased the property from Sebastian, on the 3d day of December, 1891. When the separation of the husband and wife occurred, Joseph lived in Kansas. He arrived at the home of Sebastian, in Illinois, about the 1st of December, only three or four days after the separation, and he alleges that he purchased the property involved herein from his brother a day or two after his arrival.

He produced a bill of sale purporting to invest him with the title to Sebastian’s property of “ every kind and nature except cash in hand and promissory notes not assigned and delivered to him,” all of which he claims to have purchased for a gross sum.

The price fixed upon the property was §5,000, which Joseph testifies he paid by cash, $1,000,' and by giving his note for $1,000, bearing seven per cent interest.

It is not complained that the court entertained erroneous views as to any principle of law or equity involved in the decision of the case, or that improper evidence was admitted or competent evidence rejected. The sole ground upon which a reversal is asked is that the evidence does not uphold the decree.

We have carefully read the evidence and attentively followed and considered the argument of counsel thereupon and find no reason for interfering with the finding or decree of the Circuit Court. We are, in fact, fully satisfied from the evidence that the transaction between the brothers by which the appellant insists he became the owner of the property was only a colorable and not a real sale, and that both of the parties entered into it with the fraudulent intent and purpose of removing the property beyond the reach of the wife of Sebastian and of preventing its application under the statute to the use and benefit of his wife and child.

The decree is right and must be affirmed.