Waddams v. Humphrey et al. WILLIAM WADDAMS, Appellant, v. ALVIN HUMPHREY et al., Appellees. APPEAL FROM STEPHENSON. A debtor may sell his estate although he is in debt, provided he does it fairly, for a reasonable consideration, and without fraud. A court will exercise a more liberal discretion in awarding new trials on feigned issues, than at law. A divorced woman is not a good witness where her former husband is a party. THIS bill states that, in September, A. D. 1851, complainants recovered a judgment in the Circuit Court of Stephenson county, Illinois, for $1,014.66, and costs taxed at $20.55, against David McAusland, who, with William Waddams, late father-inlaw of said McAusland, are made defendants. That, September 15, 1851, execution issued on said judgment against said David McAusland. N. W. 1 of That, on or about December 8, 1851, the sheriff levied on N. W. of N. E. 1, and S. W. of N. E. 1, and S. E. of Sec. 17, containing 120 and 43 acres off the east side of E. containing 123 acres; also S. E. containing 40 acres all in town 28 P. M., in Stephenson county, Illinois. of section 8, of section 7, N., of R. 6 East of 4th That on December 29th, 1851, said lands were sold by said sheriff by virtue of said execution, and were struck off to said complainants for $1,075.10, and the sheriff's certificate of purchase given to said complainants therefor. That, June 15, 1853, the sheriff of Stephenson county made to said complainants a sheriff's deed of conveyance for said lands. That on February 22nd, A. D. 1849, David McAusland had conveyed said lands to William Waddams, without adequate consideration, for the purpose of defrauding said complainants, and preventing them from collecting the aforesaid judgmentfor which, bill states, said complainants had threatened to prosecute, and did prosecute said David McAusland. That said deed (from McAusland to Waddams) was filed for record in the office of the clerk of the Circuit Court of Stephenson county, on the 14th of April, 1849. That complainant, Sarah G. L. Reed-now Sarah G. L. Humphrey by marriage with Alvin Humphrey-commenced suit against said McAusland for the claim aforesaid, i. e., the claim upon which said judgment was recovered as aforesaid, in Stephenson county Circuit Court, Illinois. The suit in Wisconsin Waddams v. Humphrey et al. was dismissed for want of jurisdiction in the court, all of which was prior to McAusland's sale to Waddams, and of which Waddams had notice. Bill further alleges, that complainant, Sarah G. L. Humphrey, while she was Sarah G. L. Reed, furnished to McAusland all the money wherewith to enter said lands from the United States, with the understanding that said McAusland should enter said lands in her name, and that part of the money included in said judgment is for the entry money so furnished as aforesaid. That said McAusland did not enter said lands in the name of complainant, Sarah G. L., but entered them in his own name, and then, further to defraud said Sarah G. L., sold said lands to said Waddams; that said complainants believe that McAusland was the true and rightful owner of said lands at the time of the sheriff's sale above mentioned. That McAusland falsely and fraudulently transferred said lands to Waddams, by a deed bearing date February 22, 1849. That at the time of making said conveyance, said McAusland was in good circumstances, owning and possessing the lands aforesaid, of the value of $2,500, or more; and that Waddams was unable to purchase and pay for said lands; and that Waddams, fraudulently and deceitfully combining with McAusland, fraudulently and deceitfully purchased said lands, and fraudulently holds the same from the creditors of McAusland, and particularly from complainants. Bill charges that Waddams fraudulently holds possession of a large amount of lands and personal property belonging to McAusland. Further shows that Waddams, before he purchased of McAusland, knew that complainant, Sarah G. L., had furnished the money wherewith to enter said lands, and also that Sarah G. L. had been trying, and was still trying, to collect her claim in Wisconsin aforesaid, against McAusland; that Waddams had notice of this before he received the deed from McAusland. General charge of combining and confederating. Bill waives necessity of answer being under oath. Bill prays that said lands be decreed to be held in trust for said Sarah G. L. Humphrey by defendants, McAusland and Waddams, and that the sale from McAusland to Waddams be annulled and set aside, so as to enable complainants' title under said sheriff's deed to be perfected, good and sufficient in law, or that said pretended sale from McAusland to Waddams be so far set aside as to enable complainants to make their aforesaid judgment out of said lands. Prayer for general relief. Waddams v. Humphrey et al. The answer of defendant Waddams-not under oath-denies all the material allegations and charges in the bill. General replication filed to answer of defendant Waddams. Bill taken pro confesso as to McAusland. Complainants file feigned issue. Defendant Waddams files his plea in the feigned issue, denying fraud on his part in the execution and delivery of the deed from McAusland to him. On the trial of the feigned issue there was a verdict for complainants, and a decree upon the verdict setting aside conveyance to Waddams. There was a motion to suppress the deposition and testimony of witness, Alethea Vail, for the reason that said witness had been the wife of defendant, McAusland. Motion sustained and excepted to. LELAND & LELAND, for Appellant. B. C. Cook, for Appellees. BREESE, J. We are not aware of any rule of law requiring a debtor to hold on to his real or personal estate, until a creditor can sue him and obtain judgment and execution. Such a law would produce disastrous effects, by fettering the free transfer and sale of property from one to another. But in all sales good faith must be observed, and they must be so conducted as to bear on their face no evidences of fraud whatever. No matter how much a man may be indebted, he may sell his property for a fair price, or even for a price below its market value, if done honestly and with no view to delay, hinder or defraud his creditors of their just dues, or being in failing circumstances, he has a right to prefer one creditor over all others, even if the preference exhausts his whole estate, and from the honest exercise of this right no court or law, has ever sought to deprive a debtor. A debtor can sell his property for a fair price, even if he sells it with the avowed intention of defeating an honest claim, if no lien exists to forbid it. Such we understand to be the rights and powers of a debtor. But the sale must be fair and for a valuable consideration, and the parties intending or practicing no fraud. The evidence before the jury on the trial of the feigned issue, was not, in our judgment, sufficient to satisfy the conscience of the chancellor, of fraud in the sale of these lands. The weight of evidence appears to us decidedly against the finding, and as on trials of feigned issues the same strictness is not required as in suits at law regularly brought to issue, and do not settle Campbell v. Campbell. and bind the rights of the parties, the chancellor will order new trials, until he is satisfied or will assume the responsibility of deciding the cause against the verdict. Williams v. Bishop, 15 Ill. R. 555. We are of opinion the court decided correctly, in rejecting the testimony offered, of the divorced wife of McAusland, on principles long established. We think the purposes of justice can be best promoted by a re-hearing of this cause, and for that purpose reverse the judgment and remand the cause. Judgment reversed. JAMES CAMPBELL V. THOMAS J. CAMPBELL. * The Supreme Court has not jurisdiction to issue writs of injunction. The justices of this court will not award such writs, except under extraordinary circum stances. THIS was an application to the court for an injunction. The bill in this cause was prepared to be filed in the Hancock Circuit Court, to enjoin the collection of taxes levied for railroad purposes, upon the ground of fraud upon the people of Hancock county in the submission of a proposition to take stock in two roads by one vote, and that the bonds issued were payable at the American Exchange Bank, in the city of New York. G. EDMUNDS, for the Application. as Per Curiam. We have examined this question carefully, to our power in this matter, and we are satisfied it does not extend to applications of this character. The constitution, article five, section five, provides that, "The Supreme Court may have original jurisdiction in cases relative to the revenue, in cases of mandamus, habeas corpus, and in such cases of impeachment as may be, by law, directed to be tried before it, and shall have appellate jurisdiction in all other cases." (Scates' Comp., "Organic Laws," 66.) Here are expressed all the cases in which this court may have original jurisdiction, granting injunctions not being one of them. If this court may have original jurisdiction in cases relating to mandamus, and habeas corpus, and in the others indicated, it *This and the following decision were made at Springfield, at January term 1860. Campbell v. Campbell. may not have it in cases not specified, but in all cases not specified, of every kind and description, it "shall have appellate jurisdiction only." Now unless it can be shown that original applications for injunctions, is an exercise of the appellate jurisdiction of this court, we cannot act. That it is not such an exercise no one will deny. Emphatically this is an appellate court only, having original jurisdiction in a few specified cases. But it is said the act of Assembly gives this power to the court. The act to which reference is made, entitled "Ne Exeat and Injunctions," sec. 8, (Scates' Comp. 147,) does provide that "the Supreme and Circuit Courts, in term time, and any judge thereof, in vacation, shall have power to grant writs of ne exeat and injunction," but as it is not an exercise of the appellate jurisdiction of this court, nor so declared to be, but original jurisdiction in a new case, the power cannot be conferred by statute upon this court. As a court we exercise appellate jurisdiction only, save in the few cases specially enumerated. This grant, the legislature can neither limit, abridge or enlarge, or interfere with in any manner. When, except in the specified cases, the inferior courts of original jurisdiction have acted, then, and then only, can the power of this court be called into exercise. These powers and duties confided and imposed by the constitution, we are bound by our sacred oaths of office to exercise and perform, and for the performance of which, compensation is provided in the form of salary. As a court we say, we cannot be called upon to perform any duty or exercise any power not specified in the constitution. The legislature may doubtless confer upon the judges of this court the power to perform certain duties at chambers, but the constitution not imposing the duties, their performance might be declined. It would be in the power of the legislature to confer such jurisdiction upon individuals not connected with the administration of justice, or upon the judges of the Circuit Court. The legislature has provided the most ample facilities by establishing circuit and other courts and providing functionaries throughout the State, to whom applications of this kind can be made, and we take occasion to say, that such is the press of business upon us individually, in the exercise of the original and appellate jurisdiction of this court, that we will not in vacation, award such writs, except under extraordinary circumstances, to be judged of by the member of the court to whom the application may be made. The application is refused. Application refused. |