Preston v. Colby

Citations

• 117 Ill. 477
• 4 N.E. 375

Syllabus

<p>1. Creditor's bird—remedy at law—how far that remedy must he pursued, in order that equity may interpose. A creditor’s bill can not be sustained when there is no evidence tending to prove that the debtor has assets or property that can not be reached by execution, or which is covered up and kept out of the reach of creditors, or when it appears that the debtor has turned over property, real and personal, to the creditors, of sufficient value to satisfy the debt, before the filing of the bill.</p> <p>2. A creditor’s bill lies only when the creditor has exhausted his remedy at law. It must appear that the creditor has recovered judgment, and an execution issued thereon has been returned no property found. In other words, the theory is, in order to sustain such a bill, that the debtor has no property liable to be taken and sold in satisfaction of the judgment, on execution, but he has assets secreted or covered up, which can only be reached by bill in equity.</p> <p>3. If the debtor,-after judgment has been obtained, turns out to his creditors ample property to pay the debt, if converted into money, a court of equity will not sustain a bill to reach other property transferred by the debtor to some other party, on the ground that such transfer is fraudulent.</p> <p>4. A purchased of a banker real estate for $16,300, and afterward formed a partnership with B and G, for manufacturing plows, etc., and made valuable improvements upon the purchased premises, and borrowed of the banker $3000, for which the firm gave a judgment note, payable in ninety days. Afterward, A, in the absence of B, for the purpose of closing up the partnership business, obtained a deed for the property from the banker, and gave his notes, secured by mortgage, on the same, for $19,500, which included the purchase money, the interest thereon, and the $3000 firm note, which, however, was retained, and judgment confessed thereon. A, at the same time, turned over to the banker, as a security for the de