on shares of stock which he held, the sons were to pay, and did pay, their mother, said Maria E. Dillman, $3450, and the evidence discloses no consideration for these moneys moving from Maria E. Dillman, unless it was the moneys previously received from her father and turned over to her husband, and the latter could give no other explanation why the moneys received by his wife from their sons, for a consideration moving from himself, were not applied to extinguish his wife's demands against him, than that it was the understanding that her moneys should go into a home for her. At a later period, after Dillman had become deeply involved as endorser for the corporations in which he was interested, and unable to pay his debts, Mrs. Dillman used the means she obtained through her sons from him with which to purchase from him the household furniture and other effects used by the family. His interests in the companies, so far as they continued to be of value, had been disposed of, so that in February, 1891, when his contingent liability, as guarantor, of $16,000, was reduced to a certain liability by a judgment against him for $6638 in favor of appellee, he had no property whatever remaining in his own name out of which any part of it could be collected. Appellee commenced his suit on this guaranty in January, 1888, and in May, 1888, sued out a writ of attachment in aid and levied upon the property in controversy, but it was not till February, 1891, that he recovered judgment, when judgment was rendered in his favor on both issues against Lewis E. for said amount of $6638, and a general and special execution was the following day issued and placed in the hands of the sheriff, and, as above stated, this bill was filed in the following month of March.

It is first contended that this is a creditor's bill, and that it cannot be brought until after the return of an execution nulla bona. It is, however, well settled by the decisions of this court that a bill in equity to remove a fraudulent conveyance out of the way of an execution

may be filed as soon as judgment is rendered, and without waiting until execution is returned. Weightman v. Hatch, 17 Ill. 281; Newman v. Willetts, 52 id. 98; Amick v. Young, 69 id. 542; Wisconsin Granite Co. v. Gerrity, 144 id. 77.

Considerable space is devoted in appellants' argument in the endeavor to show that the allegations of the bill and the proofs do not correspond,—that the bill alleges fraud in fact, while the proof shows, at most, but a constructive fraud. We shall not undertake to follow counsel in the technical argument made on this branch of the case, but it is sufficient to say that there was evidence in the record tending to prove a fraudulent intent on the part of Lewis E. Dillman in making the conveyance in question, and, even if only a constructive fraud is proven, the allegations of the bill are broad enough to cover it.

It is insisted, however, that the deed was not voluntary; that Maria E. Dillman was a creditor of her husband, and that he had the right to prefer her over his other creditors, and that the conveyance must be sustained even if he did not retain sufficient property at the time with which to pay his other debts. We cannot, upon this record, concur in this view, but must hold that the conveyance was voluntary. The first installment of moneys set up as the consideration for the conveyance was received upwards of thirty years before the conveyance, and the last upwards of seven years. No note or other written obligation or acknowledgment had been given, no account kept, no interest promised or paid, and the supposed indebtedness was barred by the statute of limitations. Besides, Mrs. Dillman had, as before shown, received from her husband more than sufficient to repay her, and the value of the property conveyed, without considering his estate of homestead therein, was more than three times the debt thus sought to be paid. It would be a plain invitation to the perpetration of fraud to permit husband and wife to hold in reserve demands of this character, and to bring them forward as a consid

eration for a preference over other creditors in times of financial distress.

What was said in Frank v. King, 121 Ill. 250, seems quite appropriate here, (p. 254): "The claim is, that the husband became indebted to the wife in the sum of $1000 in 1873. No note was ever given for the alleged indebtedness, nor was any interest ever paid on the debt, nor was it treated as a valid indebtedness until King was in the act of failing. Had King been prosperous in business it is not probable that this alleged debt would ever have been thought of or heard of. But however that may be, where the husband undertakes to prefer the wife to the exclusion of other creditors, the proof should be clear and satisfactory that the wife has a valid, subsisting debt, one which is to be enforced and payment exacted regardless of the fortune or misfortune of the husband. Such was not the character of this debt. A party who has a valid claim against another does not, as a general rule, suffer the claim to stand for a period of twelve years without even taking a note, without calling for interest, and, without security, doing nothing whatever to collect or secure the claim. Such is not the manner in which business is done where a valid, bona fide debt is in existence."

The next contention is, that even regarding the conveyance as a voluntary settlement upon the wife, Lewis E. Dillman was at the time in good circumstances and had ample property left to pay all of his debts,-that in fact he had no indebtedness except the contingent liability to appellee. After a careful consideration of the evidence we are forced to the same conclusion reached by the trial and Appellate Courts. The property of Dillman consisted in shares of capital stock of uncertain value in two incorporated companies, and credits on their books. The stock soon declined in value. shares in the only one that paid any dividends became worthless by the failure of the company, and the other stock he disposed of, at a small percentage of its face

His

value, in payment of a debt created after the guaranty of the notes to appellee. Judged by the results he wholly failed to retain in his hands sufficient property to meet his obligations. This is conceded, but counsel insists. that the question whether he retained property amply sufficient to pay all of his debts then existing must be determined from the evidence showing what the value of the property was at the time of the transfer, and not from its sufficiency as shown by the final result as ascertained several years afterward. This is, to a certain extent, true, but the whole evidence bearing upon the question must be considered. It was said in Harting v. Jockers, 136 Ill. 627, (on p. 635,) that "while it is ordinarily true that the question of whether sufficient has been retained may be determined by the result, where there is diligent pursuit of legal remedies following shortly after the transfer which is alleged to be fraudulent, it only becomes competent to show such result as tending, as before said, to determine the state and condition of the debtor's estate at the time of the alleged fraudulent transfer of his property." See, also, Patterson v. McKinney, 97 Ill. 41.

While the question is one not altogether free from doubt, we are inclined to agree with the circuit and Appellate Courts that the property retained by Lewis E. Dillman was of a speculative character and of uncertain value, and that he did not retain property amply sufficient to meet his liabilities. It so eventually proved, and the evidence, fairly considered, does not show the contrary. The conveyance being voluntary, and he having become insolvent, the burden of proof devolved on him to disprove the implication of fraud as to pre-existing creditors, arising from the making of the conveyance. Moritz v. Hoffman, 35 Ill. 553; Patterson v. McKinney, supra. The judgment of the Appellate Court will be affirmed. Judgment affirmed.

Mr. JUSTICE CARTWRIGHT took no part.

162 632 180 300

ATCHISON, TOPEKA AND SANTA FE RAILROAD COMPANY

v.

CHICAGO AND WESTERN INDIANA RAILROAD COMPANY.

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

1. INTEREST-on contract for sale of land-when it runs from time of taking possession. A purchaser under a contract for the sale of land containing no provision as to possession or interest must pay. interest from the date he takes possession.

2. SAME-right of vendor who is in willful default to interest on land contract. A provision of a contract for the sale of land for the payment of interest will not be enforced in favor of a party in willful default, where it contains no provision as to possession but provides a date for performance.

3. SAME-effect of vendor's neglect or inability to perform, in the absence of willful refusal. The purchaser under a contract for the sale of land providing a time for performance, with a provision for prior possession and interest from a date named, must pay interest from the time fixed by the contract, where the vendor merely neglects or is unable to perform.

4. SAME-when purchaser of land is not liable for interest after possession. A railroad company purchasing lands for a freight yard and taking a lease of depot facilities and trackage privileges from another company, is not liable for interest not provided for in the contract because it takes possession in accordance with the contract, where the vendor company willfully and without excuse refuses to perform duties constituting conditions precedent to its right to the purchase money.

A., T. & S. F. R. R. Co. v. C. & W. I. R. R. Co. 54 Ill. App. 395, reversed.

APPEAL from the Appellate Court for the first District; heard in that court on appeal from the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding.

In the spring of 1887 the Atchison, Topeka and Santa Fe Railroad Company in Chicago sought to procure from the Chicago and Western Indiana Railroad Company terminal facilities in Chicago for the Atchison railroad system. Negotiations to this end were begun, and in