Weber v. Mick

Citations

• 131 Ill. 520
• 23 N.E. 646

Syllabus

<p>1. ' Fraudulent conveyance—hindering and delaying creditors. A chattel mortgage made to a creditor of the mortgagor for the purpose of hindering and delaying other creditors of the same debtor, will be regarded as fraudulent. To hinder and delay creditors in the collection of their claims, is to defraud them.</p> <p>2. Same—how far a creditor may protect himself—as against other creditors. A creditor may pursue his legal remedies against his debtor, if he does so in good faith, and retain thereby any priority he may obtain, either by suit or the voluntary act of the latter, even though it may defeat other creditors; but it is otherwise if he seeks priority for the express purpose of delaying or defeating other creditors.</p> <p>3. Pleading—former adjudication as an estoppel. In an action upon a replevin bond, the defendants pleaded that the judgment dismissing the replevin suit was not on the merits. The plaintiff replied that certain creditors of 0. brought several actions against 0. by attachment, which were levied on certain goods of 0. which he had fraudulently mortgaged to M. & N.; that J., the sheriff, levied on the goods, and took the same from M. & N., and kept them until M. & N. replevied the same in the replevin suit; that M. & N., in the name of 0., litigated their right to said property, claiming their mortgage was valid; that the title of~the mortgagees to the property was afterward adjudged by the court to be fraudulent and void, whereby the title had been fully adjudicated since the execution of the replevin bond: Feld, that to make the pleading good, it should have shown that the question of the validity of the mortgage and of the priority of the attaching creditors was before the court for adjudication, and was in fact decided, or might have been decided, and that the mortgagees were before the court so as to be bound as parties by the judgment, and that this must be shown by proper averments of fact, and not by mere conclusions of the pleader.</