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als,) and because of some circumstances appearing which may have induced mistake or exaggeration. The testimony of the witness Gemmill, that, being on the same train with appellant and Allyn on the trip to South Dakota, he saw her resting her head for a considerable time on Allyn's shoulder, is also denied by both, and inferentially by the conductor and brakeman of the train. But she and Allyn had met clandestinely at the train. The purpose of her going was to obtain a divorce at a place remote from her own jurisdiction and from the place of the happening of the alleged grounds of her separation from her husband and of the residence of the witnesses. They both knew that their previous association had provoked the remonstrances of her husband. They had made previous preparations for the journey without the husband's knowledge. Although going to permanently change her residence she had left her daughter behind. Although each had acquaintances in South Dakota and he a relative whom he desired to visit, they did not visit them but went elsewhere. On their arrival they took connecting rooms at a hotel, he being satisfied, although it was midwinter, that she had a stove with a fire in it in her room while he had none. Her name was registered correctly, but at her request he registered under the name of her brother, and both as from South Dakota. Such undisputed facts make the occurrence testified to by Gemmill entirely probable, without considering many others of a more pointed character but which are within the region of controversy. Afterward, and before her suit had been begun in South Dakota, Allyn loaned her $1500, and later still $500 more with which to pay her expenses; and to pay her the first mentioned sum, instead of giving her the money at the bank of which he was vice-president and where he transacted business, they met by appointment at a hotel in Chicago, where they dined together in the evening.

It cannot, of course, be claimed these last mentioned circumstances alone demonstrate the truth of the charge of adultery. They are evidence of interest and attachment, but by no means necessarily of guilt. But when the whole of the evidence is considered we are of the opinion the charge is sustained. It was said in Bast v. Bast, 82 Ill. 584: "As to the testimony in all such cases, it must generally be circumstantial. The fact of adultery is to be inferred from circumstances that naturally lead to it by a fair inference, as a necessary conclusion. The direct fact of adultery can seldom, or ever, be proved." And in Daily v. Daily, 64 Ill. 329: "There is much testimony tending to establish the truth of the charge, but, as in all or nearly all such cases, there is no direct and positive evidence of the acts charged. In such cases the parties generally use every effort to conceal the act, and courts and juries are compelled to determine the question from the behavior of the parties and from a great variety of circumstances, either of which, when considered alone, would be insufficient to prove the charge, but when considered together * convince the mind that the charge is true. If direct, positive evidence should be required but few divorces would be obtained on this ground." And in Moller v. Moller, 115 N. Y. 466: "The illicit amours of faithless husbands and wives are usually clandestine, and their wicked paths are hidden from public observation, and hence courts must not be duped, and they must take such evidence as the nature of the case permits,--circumstantial, direct or positive,and bring to bear upon it the experiences and observations of life, and, thus weighing it with prudence and care, give effect to its just preponderance."

Appellant and the co-respondent may be innocent of this serious charge, as contended by her able and faithful counsel; but courts must decide questions of fact from the evidence, and parties have only themselves to




blame when, by their conduct, they furnish the evidence
for their own condemnation.

Believing the record to be free from error, or at least
from harmful error, the judgment of the Appellate Court
will be affirmed.

Judgment affirmed.

625:36 LRA343n




Filed at Ottawa June 13, 1896-Rehearing denied October 16, 1896.

1. CREDITOR'S BILL-in aid of execution-return nulla bona not necessary. A bill to remove a fraudulent conveyance out of the way of an execution may be filed as soon as judgment is rendered, and without waiting for the return, unsatisfied, of an execution.

2. SAME--when conveyance to wife is voluntary as to creditors. A conveyance by a debtor to his wife is voluntary as to creditors where the only consideration therefor is certain sums of money furnished him by her at various times, ranging from seven to thirty years before the conveyance was made, for which no note, acknowledgment or promise of repayment was taken, no account kept or payment of interest required.

3. SAME-retention of insufficient property by debtor at time of making voluntary conveyance. Retention by a debtor, at the time of making a voluntary conveyance to his wife, of property of a speculative and uncertain value, consisting of shares of capital stock and credits upon the book of a corporation, which events soon after demonstrated to be insufficient to pay his debts, will not relieve the conveyance of its fraudulent character as to creditors.

4. EVIDENCE-when burden rests on insolvent debtor to disprove fraud. One found to be insolvent after having made a voluntary conveyance to his wife, has the burden of disproving the implication of fraud as against pre-existing creditors, which arises from the making of such conveyance.

APPEAL from the Appellate Court for the Second Dis-
trict;-heard in that court on appeal from the Circuit
Court of Will county; the Hon. CHARLES BLANCHARD,
Judge, presiding.

162 625

169 643
162 625

75a 307
75a 565
162 625
83a 658

162 625 87a 585 162 625 92a 2 65

162 625 d192 2205 97a 2650 162 625 232 36


162 625 199 1220 162 625 200 4260

GEORGE S. HOUSE, for appellants.

HALEY & O'DONNELL, (HILL, HAVEN & HILL, of counsel,) for appellee.

Mr. JUSTICE CARTER delivered the opinion of the court:

This was a bill in equity, filed on March 21, 1891, in the circuit court of Will county, to set aside, in aid of an execution, two conveyances, one from appellant Lewis E. Dillman to his son E. Corbin Dillman, and one from the son to Maria E. Dillman, the wife of appellant Lewis E., to certain premises occupied by the latter and his wife as their homestead, and to subject said premises to levy and sale under the execution. Upon a full hearing in the circuit court a decree was rendered as prayed in the bill, which decree having been affirmed by the Appellate Court, appellants now seek to have the same reversed by their further appeal to this court.

Briefly stated the facts are these: In April, 1883, Lewis E. Dillman, by his endorsement thereon, guaranteed the collection of the two promissory notes, for $8000 each, given by Andrew Dillman and Edward R. Knowlton to appellee. Lewis E. Dillman then owned the premises in controversy, which were of the value of about $9000. He also owned capital stock in two manufacturing companies and credits upon their books in his favor, all of which he estimated to be of the value of $40,000, but as the capital stock in one of the companies had been only in part paid up and no dividends had ever been paid upon it, it was of uncertain value, and as the other company eventually failed, we think it clear, in connection with other facts and circumstances in evidence, that his estimate of the value of his property was entirely too high. In October, 1883, he conveyed the premises in controversy to E. Corbin Dillman for the purported consideration of $10, and E. Corbin Dillman, for a similar consideration, conveyed the same to Maria E. Dillman, wife of Lewis E., but nothing was in fact paid for such

conveyances. It appears, however, by the testimony of Lewis E., his wife and son, and it is not disputed, that the wife, Maria E. Dillman, had prior to and up to 1876 received at different times from her father, beginning with $200 "in the fifties" but after 1851, and ending with $500 in 1876, the total sum of $2160, which, as received, was turned over to Lewis E., with the understanding that it was to go eventually into a home to be conveyed to her, and that it was so agreed also when the last amount was received, in 1876. No note, receipt or other memorandum was made or given by Lewis E. showing his receipt of the money or his obligation to repay it or to invest it as stated, and no interest was ever paid or agreed to be paid, but, as testified to by appellants, the conveyance of the property in October, 1883, was made to satisfy this claim of the wife for the moneys so advanced to her husband and of his promise to put the same into a home for her benefit. Lewis E. had owned the property in question and occupied it as a home with his family for many years, and the reason given why it was not sooner conveyed to the wife, and before the liability as guarantor for the collection of the $16,000 to appellee was created, was, that the property was encumbered by a mortgage for $3000, which was not paid off until March, 1883, and that Lewis E. did not wish to convey to his wife a home so encumbered but intended to first remove the encumbrance, and that when this was done, in March, 1883, he gave the necessary papers to his attorney with instructions to prepare the deed to his wife, but that the matter was neglected until the following October. It may have no significance, but it is nevertheless true that during this delay, between March and October, his contingent liability upon the two notes for $16,000 was created. It also appears from the evidence that by certain contracts with his sons, made at different times, from 1881 to October, 1883, whereby they were to receive certain portions of the dividends paid by the Lock Stitch Fence Company

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