Wilson v. Derrwaldt

Mb. Justice Adams

delivered the opinion of the court.

The sole contention of appellant is that the court erred in dismissing the bill while a demurrer was pending. The difficulty with this contention is, that the demurrer was not pending.

Appellee, by moving for leave to withdraw his demurrer and file an answer, which leave ivas granted, waived his demurrer and submitted to answer. Thereafter, the demurrer was not pending. This being the sole contention argued by appellant’s counsel, all other objections may be deemed waived. Keyes v. Kimmel, 186 Ill. 109; Gordon v. Commissioners, etc., 169 Ib. 510; Interstate B’g, etc., Ass’n, v. Ayres, 71 Ill. App. 529, 541.

The bill, however, was properly dismissed. Ho default had been taken and it was a matter resting in the discretion of the court, whether the court would require evidence in support of the bill. Valkenburg v. Trustees, etc., 66 Ill. 103; Hoffman v. Schoyer, 143 Ib. 598, 621.

It appears from the certificate which appellant has brought up that there was an agreement between the solicitors for the parties, acceded to by the court, that there should be a hearing on the bill on evidence to be produced. When the cause was called for hearing, appellant produced no evidence. The bill is fatally defective. It avers a judgment recovered before a justice June 5, 1900, and that September 1,1894, appellee conveyed to Wilhelmine Derrwaldt, by warranty deed, the premises described in the bill; that Wilhelmine Derrwaldt is dead; that said pretended conveyance was not real, but a fiction and device to enable appellee to hold and enjoy said premises free and clear from any claim or lien of his creditors. Who Wilhelmine Derrwaldt was, or what relation, if any, she bore to appellee, is not disclosed; neither is it averred who her heirs are.

It is not averred that there was not a good or valid consideration for the conveyance to Wilhelmine, nor that appellee had amr creditor at the time of the conveyance. ' The allegation that the conveyance was not real, but a mere fiction and device, is a mere conclusion of the pleader. Ho facts are averred from which such conclusion can be deduced. As between appellee and Wilhelmine, the conveyance was effective to convey the title, and she having died, her heirs were necessary parties. If there was a valid consideration for the conveyance, which the bill does not deny, the conveyance was valid as against all the world; or, if appellee was not in debt at the time of the conveyance, and it is not averred that he was, the conveyance was valid. The bill was properly dismissed. Howell v. Foster, 122 Ill. 276; Atkins v. Billings, 72 Ib. 597.

A bill may be dismissed for want of equity appearing on the face of the bill, at the hearing. Chicago Pub. Stock Exchange v. McClaughry, 148 Ill. 372, 382.

In the present case the bill being fatally defective, and also the appellant omitting to produce any evidence in support of it when required so to do, and no motion having been made for leave to amend it, the court did not err in dismissing it. The decree will be affirmed.