Howell v. Edmonds

Citations

• 47 Ill. 79

Syllabus

<p>1. Practice—when it is too late to raise a certain objection. This court has repeatedly said,that an objection of such a nature, that it might have been removed by further evidence, if not taken and persisted in on the trial of the cause, cannot be raised in the appellate court.</p> <p>2. Statute of frauds—consideration—relative to judgment in a particular case— —not within the statute. A gave to B, his brother, a note, the consideration for which was, to reimburse B, to the extent of one half of the expenses incurred by him in maintaining their indigent parents, for a period of nearly thirty years, and afterwards gave to him a warrant of attorney, authorizing a confession of judgment to be made for the amount specified in the note, which was done : Held, in a suit against the estate of A, to recover the amount of the judgment, it appearing, that at the time of the transaction, there was no creditor who could have been defrauded thereby, and that no such intent actuated the parties, the debt was bona fide, and did not come within the statute of frauds.</p> <p>3. Same—no objection that there were other creditors—the debt being bona fide. Nor would it be any objection, that there were other creditors of A, at the time the judgment was so confessed ; the debt being a bona fide one, he had a right to prefer B, to any of the others.</p> <p>4. Judgment—effect of releasing lien of—upon the realty, as to bona fide purchasers. And, in such case, it would not matter, that execution had not issued on the judgment, or its lien, had, by agreement between the parties, entered of record, been removed, as against bona fide purchasers. Notwithstanding this, the judgment remained a qualified lien.</p> <p>B. Same—lapse of fifteen years after rendition of—no presumption of payment. Nor does the fact, that fifteen years have elapsed since the rendition of the judgment, of itself, furnish any presumption that it has been paid.</p> <p>6. Eraud—its effect. Neither the parties to a fraud