author: Mr. Chief Justice Craig

text:
    Thomas M. Watson et al. v. John Saxer.

      Filed at Springfield March 28, 1882.

      1. Homestead—of the nature of the title to which it may attach. Under the Homestead act of 1872, a tenant holding a leasehold interest in premises may claim the benefit of the statute, as well as if he were the owner of the fee; and the holder of any possessory interest in lands, without regard to the extent of title, may invoke the aid of the statute. The holder of land under a contract of purchase, under that act, as well as under the act of 1851, occupying the same as a residence with his family, is entitled to a homestead right in the premises to the value of $1000, as against all creditors, except his vendor for the unpaid purchase money.
    2. SAME—new one bought from proceeds of sale of former one. Where a person lawfully entitled to a homestead in premises sells his interest therein, and out of the proceeds of the sale within one year purchases a house and lot for a residence for himself and family, which does not cost or exceed in value $1000, and goes into its actual occupancy, by residence, in four or five days afterwards, such- house and lot will constitute his homestead, and any sale thereof on execution against him will be a nullity, and the sheriffs deed will pass no title.
    Appeal from the Circuit Court of Pike county; the Hon. S. P. Shops, Judge, presiding.
    Mr. J. S. Irwin, for the appellants:
    Homestead right may he set up and relied upon in an action of ejectment. Stevens v. Hollinsworth, 74 Ill. 202.
    A judgment is not a lien on the homestead. Green v. Marks et al. 25 Ill. 221; Bonnell v. Smith et al. 53 id. 376; Shackelford v. Todhunter, 4 Bradw. 271.
    The rights of parties to homesteads depend upon the laws in force at the time of the rendition of judgment upon the contract. Derby v. Dickson, 4 Bradw. 187.
    A homestead right may be claimed in a less estate than a fee—may be in an equitable estate. Tomlin v. Hilliard, 43 Ill. 300; Blue v. Blue, 38 id. 9; Allen v. Hawley, 66 id. 168.
    Tenant by the curtesy may claim. Potts v. Davenport et al. 79 Ill. 456.
    Any one owning an estate in tail—for life, for years—by the curtesy or in dower, may claim homestead. Deere v. Chapman, 25 Ill. 612; Conklin v. Foster, 57 id. 104; McClurken v. McClurken, 46 id. 327.
    If the estate owned by the debtor is such an interest in land as may be sold under execution, he may claim a homestead in it, and this is the test. Deere v. Chapman, 25 Ill. 610; Conklin v. Foster, 57 id. 107; McClurken v. McClurken, 46 id. 327; Shackelford v. Todhunter, 4 Bradw. 274; Thompson on Homesteads, secs. 165-66; Vogler v. Montgomery, 54 Mo. 584.
    A possessory title may be sold under execution. Thompson v. Bowman, 29 Ill. 426; Same case, 30 id. 84; Colwell v. Carper, 15 Ohio St. 285.

      Homestead act to be construed liberally. Turney v. Saunders, 45 S. C. 527; French v. Carr, 2 Gilm. 664; Deere v. Chapman, 25 Ill. 610; Lœb v. McMahon, 89 id. 487.
    There may be a homestead against all strangers, although not against the vendor or owner of the paramount title. Thompson on Homesteads, secs. 165-6, 334, n. 2; Spencer v. Geisman, 37 Cal. 99; Clark v. Twanick, 56 Ga. 359; Brooks v. Hyde, 37 Cal. 373; Smith v. Whittle, 50 Ga. 626; Garaty v. DuBose, 5 S. C. 493; McHendley v. Reilly, 13 Cal. 75; McClurken v. McClurken, 46 Ill. 327; Hopper v. Parkinson, 5 Nev. 233; Allen v. Hawley, 66 Ill. 169; People v. Stitt, 7 Bradw. 298.
    Even before the Homestead act of 1872, by a fair construction of prior acts, moneys arising from the sale of the homestead were exempt from execution. Walsh v. Horine, 36 Ill. 238; Cole v. Green, 21 id. 104; Green v. Marks, 25 id. 223; Vaughn v. Thompson, 17 id. 80.
    . And the proceeds being exempt in his hands, may be exchanged or converted into a new homestead. Vaughn v. Thompson, 17 Ill. 80; Shackelford v. Todhunter, 4 Bradw. 271; People v. Stitt, 7 id. 299; Watkins v. Blatschiniski, 40 Wis. 347; Thompson on Homesteads, secs. 395, 399.
    Messrs. Obb & Cbawfobd, and Mr. J. S. Bailey, for the appellee:
    A judgment' against a party attaches to real estate as soon as it is acquired by him, and although he is not in possession when the conveyance is delivered to him, the lien attaches, and the taking of possession afterwards, and residence thereon, will not divest such lien which attached before the acquisition of a homestead. Tourville v. Pierson, 39 Ill. 447; Reinbach v. Walter, 27 id. 393.
    The Homestead law of this State, until July 1, 1872, contained no clause exempting the proceeds of a voluntary sale of a homestead from execution, and if the law in force when the cause of action accrued is to govern the rights of the parties, then Reynolds’ exemption ceased when he disposed .of his interest in the farm, and the proceeds . of such sale, if converted into real estate, became liable for the payment of his debts. Bronson v. Kinzie, 1 How. 311; 1 Kent’s Com. 419, note n; Derby v. Dixon, 4 Bradw. 190.
    Counsel also contended, from the evidence and facts, that Reynolds had no homestead in the Gray farm, and especially after the rescission of his contract of purchase,—that he had no interest therein that could be sold on execution.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by John Saxer, in the circuit court of Pike county, against appellants, to recover the possession of two certain lots in Griggsville. On a trial of the cause in the circuit court plaintiff obtained a judgment for the possession of the property, and defendants appealed.

Both parties claim title to the premises through Daniel B. Reynolds, who purchased of one Greene, on the 18th day of April, 1873. The plaintiff claimed under a judgment rendered against Reynolds in the circuit court of Pike county, on the 7th day of April, 1873, upon which the property was sold, and after the time for redemption had expired a deed was made. The defendants claimed under deed from Reynolds, executed after the rendition of judgment, basing their right to hold under the deed upon the alleged. fact that the property was the homestead of Reynolds, worth less than $1000, and as such, subject to sale free from the lien of plaintiff’s judgment. It is not claimed that the property is worth more than $1000, and had Reynolds owned and occupied it with his family at the time the judgment was rendered, no lien would have been created by the rendition of the judgment. On the other hand, a sale and conveyance by Reynolds would pass the title to his grantee, regardless of the judgment. Reynolds did not, however, obtain the property until ten or eleven days after the judgment was rendered, and did not move on the premises until four or five days thereafter. It is, however, claimed by the defendants, that Eeynolds possessed a homestead in a certain quarter-section of land in Pike county, which he sold for $3000, and within one year thereafter purchased the premises in question for a homestead, paying for the same with the money derived from the sale of such homestead.

Section 6 of the Homestead act declares: “When a homestead is conveyed by the owner thereof, such conveyance shall not subject the premises to any lien or incumbrance to which it would not have been subject in the hands of such owner, and the proceeds thereof, to the extent of the amount of $1000, shall be exempt from execution or other process for one year after the receipt thereof by the person entitled to the exemption; • and if reinvested in a homestead, the same shall be entitled to the same exemption as the original homestead. ”

It is clear, from the evidence, that in August or September, 1869, Eeynolds purchased of Gray a farm in Pike county, consisting of 160 acres; that he obtained a bond for a deed, under which he went into possession of the land, agreeing to pay therefor $8000. Eeynolds moved on this land with his family, and occupied it as a home, from September, 1869, until August, 1872. During the time Eeynolds occupied the land he. erected a house, and made other improvements of the value of $3000, but paid no part of the purchase money. It also appears that the bond for a deed was surrendered to Gray in the winter of 1871 or spring of 1872, and on the first day of July, 1872, a written contract was made between Eeynolds and Gray, under which Eeynolds agreed to surrender the possession of the land to Gray on or before September 5, 1872, and he also agreed to deliver to Gray two-fifths of all crops raised on the land that season, and in consideration of the improvements and work done on the premises Gray agreed to pay Eeynolds $3000,—first paying such debts as Eeynolds owed upon which Gray was surety, and the balance to be paid to Eeynolds. Under this arrangement Eeynolds received a note on one McMahon, for $830. This note, and $170 in cash, paid for the lots in question. It is true that Gray testified that before the first crop was matured after Eeynolds went on the land, he became his tenant, and continued to occupy the land as such until he left, in 1872, under a verbal contract. This is, however, denied by Eeynolds. But without stopping to determine what the precise character of the arrangement was between these two parties, the fact remains that Eeynolds went into the possession of the land as a purchaser, and made valuable improvements, and never relinquished his rights as a purchaser until July 1, 1872, when he sold out his improvements and interest in the land for $3000. This contract was reduced to writing, and speaks for itself, and it establishes the fact, beyond dispute, that up to the time it was executed Eeynolds retained a valuable, interest in the premises. If at the time the contract was made Eeynolds had no interest in the land, as Gray testified, and no right or title to it, it is very strange that Gray was willing to pay him $3000 for nothing.

The question then arises whether Eeynolds had such right, title or interest in the Pike county farm as could be set up by him under the homestead laws of the State as exempt from attachment, judgment, levy, or execution sale for the payment of his debts. If he had, then the property in question, purchased with $1000, the proceeds of the sale of such homestead, would be entitled to the same exemption under the statute.

The Homestead act of 1851 provided that the' lot of ground, and the buildings thereon, occupied as a residence and owned by the debtor, should be exempt. Under this statute, which seemed to require the debtor to own the property, in Deere v. Chapman, 25 Ill. 610, it was held that a debtor was not required to own an estate in fee in the property in order to claim the protection of the statute. It is there said: “The object of the law most clearly is to secure the head of the family in the possession and enjoyment of the lot and buildings for the maintenance and shelter of himself and family as a home, without any special regard to the extent of the estate or title by which he owned it.”

It will be observed that the first section of our present Homestead act is far more liberal as to the ownership of the land occupied as a homestead, than the old statute under which the decision cited was rendered. The language of the present statute is: “That every householder having a family shall he entitled to an estate of homestead, to the extent in value of $1000, in the farm or lot of land and buildings thereon owned or rightfully possessed, by lease or otherwise, by him as a residence. ” Under this statute a tenant holding a leasehold interest in premises may claim the benefit of the statute as well as the owner of the fée. Indeed, the holder of any possessory interest in lands, without regard to the extent of title, may invoke the aid of the statute. If we are correct in the construction of the statute, it is a matter of no moment whether Eeynolds occupied the farm as a purchaser or as a tenant,—in either event he fell within the provision of the Homestead act. It is true that Eeynolds could not claim a homestead in the farm as against Gray, his vendor, but that fact does not affect the question,—it was enough that he could avail of the statute as against creditors.

It is, however, contended that section 6 of the Homestead act, which exempts $1000, proceeds of a homestead conveyed, for one year, can have no bearing on this case, as appellee’s debt was contracted in 1870, and the law was not in force until 1872. The Homestead act makes no distinction between debts contracted before or after its passage, and we do not regard it necessary in this case to determine whether the law should only apply to debts contracted after its passage, as in our judgment a fair construction of the law in force when the debt was contracted would exempt $1000 derived from a sale of a homestead, for one year. Section 5, of the act of 1851, in express terms provides that where a homestead shall be sold under legal process, and $1000 shall be paid to the party holding such homestead, the money shall be exempt for one year. There is no difference in principle between a sale made under the process of court, and a voluntary sale, and whether the $1000 is secured one way or the other can make no difference. If it is derived from a sale of the homestead, and represents that estate, the spirit of the statute exempts it for one year.

After a careful consideration of the evidence we are of opinion that the judgment should have been in favor of the defendants. Reynolds purchased this property for a homestead with money derived from a sale of a homestead. Within four or five days after the purchase he moved on the property and occupied it with his family. Under such circumstances we are of opinion that the judgment upon which the property was sold, and under which the plaintiff derived his title, did not become a lien on the property, and that the sale under the judgment was a nullity, and no title passed.

The judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    Henry H. Gage v. Christian C. Busse et al.

      Filed at Ottawa March 28, 1882.

    1. Tax same—;judgment in excess of proper amount—redemption by owner. If a judgment against land for taxes may be inquired into on bill in chancery, and it may be shown that part of the taxes included in the judgment is illegal, the owner should be allowed to redeem from the sale by paying the redemption money allowed by the statute had the judgment and sale been for the proper amount of taxes.
    2. Costs—on bill to set aside tax sale. Where a lot owner knows of an application for judgment against his lot for taxes, fails to pay the taxes properly assessed, and lies by and permits judgment for the taxes, embracing an erroneous tax, to be entered, and permits another in good faith to purchase on the faith of the judgment, and not offering before suit to pay the redemption money necessary had the erroneous taxes been omitted, it is not proper, on bill filed to set aside the sale, to require the purchaser to pay the costs.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Certain lots in Chicago, owned by appellees, were sold for taxes for the year 1875, at a sale made in October, 1876, under a judgment of the county court, upon due notice, as required by the statute. The owners did not appear or interpose any objections to the rendering of such judgment. The certificate of sale was duly made, and afterwards was assigned to the appellant, who paid all taxes assessed and levied upon these lots after the taxes for 1875.
    This is a suit in chancery, brought by appellees, to set aside this tax sale, and enjoin the issue of a tax deed to the appellant. The bill was filed October 10, 1878,—a short time before the expiration of the time allowed by statute for redemption from such sales. The sale of each half of one of the lots (lot 13, block 16, Wolcott’s addition to Chicago,) was for $144.09, embracing as a portion thereof certain city taxes which were not lawful charges upon the property. The amount for which the sale was made, consisted of $143.69 for taxes, and forty cents costs. The portion, of this tax which was unauthorized by law, but was embraced in the judgment and in the sale, was about $39.18. Complainants offered to refund or pay to appellant the amount of lawful taxes embraced in the judgment, and all subsequent taxes paid by him, with six per cent interest. On final hearing the relief sought was granted, on the terms stated. This decree, on appeal, was affirmed in the Appellate Court. Gage appeals to this court.
    Mr. Augustus N. Gage, and Mr. F. H. Kales, for the appellant:
    The .rule of res judicata applies to a judgment for taxes the same as to any other, and such judgment can not be attacked collaterally. Chestnut v. Marsh, 12 Ill. 173; Mayo v. AhLoy, 32 Cal. 479; Porter v. Purdy, 29 N. Y. 106; People v. Brislin, 80 Ill. 423; Chicago and Nortwestern R. R. Co. v. People, 83 Ill. 467; Andrews v. People, 84 Ill. 28; Graceland Cemetery Co. v. People, 92 Ill. 619; Griffith v. Bogart, 18 How. 158; Gray v. Brignardello, 1 Wall. 627.
    As to the binding force and conclusiveness of judgments in rem, see Starkie on Evidence, sec. 380; Crandson v. Leonard, 4 Cranch, 434; Galston v. Hoyt, 13 Johns. 561; 3 Wheat. 246; Graceland Cemetery Co. v. People, 92 Ill. 619; McCahil v. Insurance Co. 26 N. J. Eq. 531; Monroe v. Douglas, 4 Sandf. Ch. 134; People v. Brislin, 80 Ill. 423; Lehmer v. People, 80 id. 601; Prout v. People, 83 id. 154.
    If the county court had the right to proceed and render judgment for any amount of the taxes claimed, its judgment can not be attacked collaterally for error in giving it for too much. Law v. People, 87 Ill. 385.
    Mr. Edward G. Mason, and Mr.-Alfred Bishop Mason, for the appellees:
    No court has jurisdiction to enter judgment for an illegal tax, and a judgment for a legal one is conclusive only upon a person who appears and objects. Belleville Nail Co. v. People, 98 Ill. 399; Campbell v. State, 41 id. 455; Allen v. Peoria R. R. Co. 44 id. 85; McLaughlin v. Thompson, 55 id. 249; McVeigh v. Winser, 3 Otto, 274; Cooley on Taxation, 344; Blackwell on Tax Titles, 160.

      The property having been sold under a joint execution issued upon all the judgments for the sum of all the taxes, the owner could not have redeemed from any portion of the sale, but only from the whole. Rev. Stat. ch. 120, sec. 210.
   Mr. Justice Dickey

delivered the opinion of the Court:

Assuming that the judgment under which this sale for taxes was made may be inquired into, it is not perceived that equity requires that appellant should be shorn of his rights under the purchase to any greater extent than in so far as they are affected by the amount of taxes erroneously included in the judgment. On that hypothesis the decree ought to have been that complainants be allowed to redeem from the sale by paying the redemption money allowed by the statute had the judgment and sale been for the proper amount of taxes, which can be readily ascertained by deducting the erroneous tax from the amount of the judgment. It does not seem just, either, that under the circumstances the purchaser at a tax sale ought to be compelled to pay the costs of this suit. It is not shown that complainants did not in fact know that the suit for taxes was pending. For aught that appears in this record these complainants had full knowledge of the pendency of the proceedings for the collection of the taxes due on their .land. They failed to pay the taxes which were properly assessed. They were first at fault. They lay by without objection, and permitted the judgment for the taxes, embracing the erroneous tax, to be entered, and permitted the complainant in good faith to purchase, on the faith of that judgment. They did not, before beginning this suit, offer to pay the amount of redemption money which would have been necessary had the erroneous taxes not been included in the judgment. If they wish the aid of a court of equity to relieve them from the injury they are about to suffer, they ought to treat that as having been done which ought to have been done. To permit parties with full knowledge to lie by, neglect to pay the true amount of their taxes, neglect to assert their objections when judgment is sought against their land, having a full opportunity to do so, and, after another has invested his money on the faith of such judgment, to come into a court of chancery, and escape by paying, at this late day, simply the taxes which they ought to have paid, and six per cent interest thereon, would be to invite men to omit to pay their taxes, and to speculate, without danger of losing their land, upon the chances of showing some erroneous tax embraced in the judgment for taxes. Public policy demands that this should not be.

The judgment of the Appellate Court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.


author: Mr. Justice Mulkey Mr. Justice Scott,

text:
    Sarah O. Hanna et al. v. Susannah M. Read et al.

      Filed at Ottawa March 28, 1882.

    1. Fobmeb adjudication—how far conclusive. A decree of a court of competent jurisdiction in the State of Indiana, finding that a deceased grantor of lands was, at the time of making a conveyance of lands in that State, insane, and incapable of doing business, and setting such conveyance to his wife aside, is not only competent evidence to establish the fact of the grantor’s insanity, in a suit between substantially the same parties, to avoid a conveyance of lands in this State, made by the same grantor and at the same time the deed was made to the Indiana lands, to a trustee, who immediately conveyed to the grantor’s wife, but when properly pleaded and relied on, is conclusive upon the defendants in the latter suit, as to that fact.
    2. "When the former adjudication is relied'on as an answer and bar to the whole cause of action, or, in other words, when it is claimed to be an answer to all the questions involved in the subsequent action, then it must appear that the cause of action and thing sought to be recovered are the same in both suits. The former adjudication in such case is known as an estoppel by judgment, and the judgment itself is a bar to the action.
    3. But when some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not. This is known as an estoppel by verdict, and is equally available to a plaintiff in support of his action, when the circumstances warrant it, as when offered by a defendant as matter of defence.
    4. Same—as to identity of parties. It is sufficient to make a former adjudication as to any material fact determined, an estoppel, that the parties be substantially the same. The fact that in the second suit one is made a party who was not a party in the first action, will not defeat the application of the rule of estoppel when such person is a mere formal party, having no interests that can be affected.
    5. Judgment—can not be attacked collaterally. The force and effect of a decree of a sister State, when set up as an estoppel to deny a fact necessarily found by it, can not be avoided by showing that the defendant in such former suit, and against whom the finding is offered, was insane at the time such proceedings were had therein. The effect of such decree can be obviated only by a direct proceeding in the courts of such State to impeach or set it aside.
    Writ of Error to the Circuit Court of Cook county; the Hon. William H. Barndm, Judge, presiding.
    Messrs. Walker & Carter, for the plaintiffs in error:
    The judgment of a court of a sister State is entitled to the same force and effect as in the State where it was rendered. Sec. 1, art. 4, Constitution of United States; Mills v. Duryee, 7 Cranch, 481; Andrews v. Montgomery et al. 19 Johns. 162; Balter v. Palmer, 83 Ill. 568,
    Every judgment is conclusive between parties and privies as to such facts in issue upon which a judgment is, on its face, conditioned, as were actually decided by the court. Freeman on Judgments, see. 252.
    That a decision upon any material point is conclusive, though the subject matter of the two suits be different: Freeman on Judgments, sec. 253; Spencer v. Dearth, 43 Vt. 98; Betts v. Starr, 5 Conn. 550; Doty v. Brown, 4 N. Y. 71; Williams v. Fitzhugh, 44 Barb. 321; Walker v. Chase, 53 Me. 258; Davis v. Brown, 4 Otto, 423.
    A judgment is conclusive not only as to the subject matter in suit, but as to all other suits, which, though concerning other subject matter, involve the questions in controversy. Freeman on Judgments, sec. 253; Gardner v. Buckbee, 3 Cow. 120; Bouchaud v. Dias, 3 Denio, 238.; Babcock v. 'Campbell, 12 Ohio St. 11; Sawyer v. Woodbury, 7 Gray, 449; Merriam v. Whittemore, 5 id. 316; Caperton v. Schmidt, 26 Cal. 479; Eastman v. Cooper, 15 Pick. 276; Sage v. McAlpin, 11 Cush. 165; Beloit v. Morgan, 7 Wall. 619; San Antonio v. Lane, 32 Tex. 411.
    If the same evidence will support both actions, a judgment in the one is conclusive upon the same issue in the second suit, though the cause of action be different. Doty v. Brown, 4 Comst. (N. Y.) 71; Taylor v. Castle, 42 Cal. 371; Cannon v. Brame, 45 Ala. 262; Percy v. Foote, 36 Conn. 102; Gunn v. Howell, 27 Ala. 663.
    As to the effect which the courts in Indiana would give the judgment offered and excluded, see 24 Ind. 156; 57 id. 56; 1 Blackf. 360; 55 Ind. 5S4; 51 id. 329; 46 id. 350; 45 id. 489.
    As to the question how far the contravening or subsisting insanity of a judgment defendant affects the judgment when it comes up collaterally, we assert that it does not affect it at all, and cite Freeman on Judgments, sec. 152; 63 Pa. St. 320; 50 Md. 214; 1 Gill, (Md.). 347; 31 Ohio St. 247.
    Messrs. Wilson, Mabtin & Cook, for the defendants in error:
    To make a matter decided res judicata, there must be a concurrence of the following four conditions: Identity in the thing sued for, identity in the cause of action, and identity of persons and of parties. Bouvier’s Law Die. 467; Miller
      v. McMannis, 57 Ill. 126; Gray v. Gillilan, 15 id. 456 ; Van Alstyne v. Trad., Pitts. and Cleav. R. R. Co. 34 Barb. 28; Mersereau v. Pearsall, 19 N. Y. 108.
    A former decree is neither conclusive nor admissible, unless both suits are between the same parties. 1 Green-leaf' on Evidence, secs. 522, 524; Maule v. Brice 2 C. P. Cooper, (Temp. Cott.) 215; Baring v. Fanning, 1 Paine, 549; Duchess of Kingston’s case, 20 How. St. Trials, 369; Thomas’ Trustees v. Brashear, 4 T. B. Mon. 65; Owings v. Hull; 9 Pet. 607; Cates v. Woodson, 2 Dana, 454.
    The former case was not fairly tried on its merits. Where this happens from the sudden incapacity of the defendant, he is not concluded by the former judgment. 1 Greenleaf on Evidence, sec. 530.
    It is competent to show the state of facts which existed on this point at the trial. Cromwell v. Sac County, 4 Otto, 356.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Ezra B. Bead, on the 26th day of April, 1877, was the owner in fee of a large amount of real estate, situate in Vigo county, Indiana, where he then resided with his family. He was also, at the same time, the owner of other valuable real property in Chicago, this State, being the same now in controversy. On the day above mentioned, at his residence in Vigo county, he executed two deeds, embracing the whole of his estate, by one of which he conveyed directly to his wife, Susannah M. Bead, the Indiana lands, and by the other, under the advice of counsel, he conveyed the Chicago property to Marvin M. Hickox, who thereupon, in pursuance of a previous understanding between the parties to that effect, conveyed the same property to Bead’s wife, so that by means of the three deeds she became* clothed with the apparent legal title to all her husband’s lands.

On the 10th of the following month Bead died intestate, leaving the said Susannah M. Bead, his widow, and Sarah 0. Hanna, Jonathan T., Kenton C., Broady, and Parke Read, his children and only heirs at law. The first three of the children above mentioned were by his first wife, and the other two, Broady and Parke, by his second wife. Shortly after the death of - Read his children by his first wife, the present plaintiffs in error, commenced a suit in the circuit court of Vigo county, against the widow and her two children, Broady and Parke, for the purpose of having Read’s deed to his wife of the Indiana lands set aside and canceled, on the alleged ground that at the time of making the conveyances above mentioned he was insane, and on the further ground that said conveyances were obtained through the fraud and undue influence of the grantee.

The defendants, having been duly served with process, appeared in court, and by their answer distinctly denied the charges of insanity and undue influence, and upon the issues thus formed the cause was heard and determined upon the merits at the November term, 1877, of the Vigo county circuit court, resulting in a judgment and decree setting aside the deed to the Indiana lands. As a basis of that decree the court specifically found that Ezra B. Read executed the deed because of the undue influence and fraudulent conduct of the said Susannah M. Read, and that at the time he so executed these deeds, on the 26th of April, 1877, “he ivas of unsound mind, and incaj>able of making said instruments. ” The decree and specific findings of the circuit court of Vigo county are still in full force and effect.

Plaintiffs in error, assuming the adjudication in the Indiana court was conclusive upon the question of Read’s mental condition at the time of making the deeds in question, filed the present bill against the defendants in error, alleging, as was done in the former case, the insanity of Read and the undue influence and fraud of his wife, and also setting up the proceedings in the Vigo county circuit court, including the decree and findings in said cause as heretofore stated, and relied upon the transcript of the record of that case as evidence to sustain the bill in the present case. The circuit court, however, refused to admit the transcript in evidence, and plaintiffs in error not offering any other or further evidence with respect to the insanity of Beed or the undue influence and fraud of his wife, the court entered a de.cree dismissing the bill, to reverse which the complainants in the bill bring the case to this court by writ of error.

The immediate question presented by the record for our determination is, whether the court below erred in excluding •from its consideration as evidence the transcript of the proceedings in the Vigo county circuit court, and the solution of this question of course depends upon what, if any, effect must be given to the record of those proceedings as an instrument of evidence in the present suit for the purpose of establishing the alleged insanity of Bead, or the fraud and undue influence of his wife. Since the proof of eithér of these facts would fully warrant the relief sought by the bill,—and it is clear if the record be competent evidence to establish the one, it is the other,—it will only be necessary to consider the question so far as it relates to the mental capacity of Bead at the time of executing the deeds.

On the one hand, it is insisted by defendants in error that all the conditions essential to the admissibility of such evidence are wanting,—that there is neither identity in the thing sued for, in the cause of action, nor of the parties in the two actions, and hence they conclude the evidence was properly excluded. On the other hand, plaintiffs in error maintain that in the former suit the mental capacity of Bead at the time of the execution of these deeds was directly put in issue by the pleadings, fully considered, and expressly determined by the court, as appears from the pleadings and decree in that cause; that within the meaning of the law relating to a, former adjudication, when operating as an estoppel, the parties to the present and former actions are the same, and hence, although there is a want of identity in the thing sought to be recovered and the cause of action in the two suits, the record of the decree in the former suit, which specifically finds that Bead at the time in question was insane and incapable of making a conveyance, was not only competent evidence to establish that fact in the present suit, but was absolutely conclusive of it,—and in this position we are of opinion plaintiffs in error are sustained by the decided weight of authority.

The contention of defendants in error that before an adjudication in a former suit can be made available as an estoppel, it must appear that the thing sought to be recovered and the cause of action in both suits are the same, is not universally true. A careful examination of the subject will show there is a diversity in the cases in this respect which, if kept in view, will satisfactorily explain what would otherwise appear to be irreconcilable statements of different courts of the highest respectability in discussing the law of estoppel by judgment or verdict. Where the former adjudication is relied on as an answer and bar to the whole cause of action, or, in other words, where it is claimed to be an answer to all the questions involved in the subsequent action, then it must appear, as claimed by defendants in error, that the cause of action and thing sought to be recovered are the same in both suits. The former adjudication in cases of this class is technically known as an estoppel by judgment, and the judgment itself is commonly characterized as a bar to the action; but where some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not. This species of estoppel is known to the law as an estoppel by verdict, and is equally available to a plaintiff in support of his action, when the circumstances warrant it, as when offered by a defendant as matter of defence. The estoppel relied on in the present case clearly belongs to the class last considered, so it is unimportant whether the cause of action is the same in both cases or not. Although there is the diversity in the two classes of cases we have mentioned, it is apprehended there is no material difference in the principles by which they are governed.

Whether the adjudication relied on as an estoppel goes to a single question, or all the questions involved in a cause, the fundamental principle upon which it is allowed in either case is, that justice and public policy alike demand that a matter, whether consisting of one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction, shall be deemed finally and conclusively settled in any subsequent litigation between the same parties, where the same question or questions arise, except where the litigation is a direct proceeding for the purpose of reversing or setting aside such adjudication. The foregoing view of the law on this subject is believed to be fully sustained by the following authorities : Betts v. Starr, 5 Conn. 550; Parker v. Standish, 3 Pick. 288; Van Rensselaer v. Akin, 22 Wend. 549; Aurora City v. West, 7 Wall. 82; Young v. Black, 7 Cranch, 565; Miller v. Maurice, 6 Hill. 114; White v. Coatsworth, 2 Selden, 137; Eastman v. Cooper, 15 Pick. 276; Gardner v. Buckbee, 3 Cow. 120; Bouchaud v. Dias, 3 Den. 243; Hayes v. Gudykunst, 1 Jones, 221; Cromwell v. County of Sac, 94 U. S. (4 Otto,) 526; Davis v. Brown, id. 423; Duchess of Kingston’s case, 2 Smith’s L. C. 424; Outram v. Moorewood, 3 East, 346; Moonott v. Hampton, 7 T. R. 269; Arlin v. Parkin, 2 Burr. 665.

It is not denied that The decree and findings in the Indiana case conclusively establish the insanity of Bead at the time of making the conveyance to the Indiana lands, but it is suggested that notwithstanding the evidence conclusively shows that the making of the deed to the Illinois land was at the same time, and that the execution of these conveyances constituted one and the same transaction, still, of necessity, there must have been a moment of time intervening between the execution of the two deeds, and hence' it is maintained we can only arrive at the conclusion the grantor was insane at the time of making the deed to the Illinois land by mere argument or inference, which is not permitted in applying the doctrine of res juclicata. We regard this position as too technical and refined for any practical purpose. To adopt it would be to lose sight of the real substance of the transaction, and to go in pursuit of its shadow. It would place the court in direct antagonism with a number of the cases above cited, and afford a striking illustration of what is known as “sticking in the hark.”

That the mental condition of Bead at the time of making these deeds was put directly in issue by the pleadings, and expressly decided by the decree in the former suit, we think clear, beyond all doubt. Both deeds were made exhibits to the bill in that case, and in referring to these deeds it is expressly charged in the bill “that at the time of executing said deeds said Ezra B. Bead was of insane mind, and said supposed deeds were not his deeds. ” This allegation was put directly in issue by the answer of the defendants, which was a general denial of all the allegations in the bill." Upon the issue thus formed, the cause was submitted to a jury, and was tried upon the merits. The jury returned a„general verdict for the complainants, and thereupon the court, in pursuance of the verdict, entered a formal judgment, wherein it was adjudged and decreed, “that the matters and things alleged in the complaint, and each paragraph thereof, are true as therein alleged. ” One of these allegations thus found by the decree to be true, as we have just seen, is that Bead, at the time of making these deeds, was of “insane mind. ” It is thus clear, both from the pleadings and decree, that the insanity of Bead was fixed, and conclusively established, at the time of making these deeds. Their execution being concurrent acts, and constituting but one transaction, his insanity could not, in the very nature of things, have been shown as to one deed without showing it as to the others also, and the mere fact that that court had no power to enter a decree directly affecting the title to the Chicago property, does not at all affect the conclusiveness of its finding as respects Bead’s insanity at the time of making these deeds.

■ It is further objected that the parties to the former and present suits are not the same. This objection we do not regard as tenable. It is sufficient for the purposes of the rule relating to a former adjudication, when relied on as an estoppel, that the parties be substantially the same, and so we regard them in the present case. Thompson v. Roberts, 24 How. 233; 7 Rob. Prac. 137; Drake v. Perry, 58 Ill. 122. In the ease last cited, the holder of a note indorsed in blank brought an action upon it before a justice of the peace, in the name of the payee, for his use, in which a judgment was rendered for the defendant. The holder, without taking an appeal, subsequently withdrew the note from the justice, filled up the blank indorsement with his own name, and instituted another suit upon it in his name as indorsee, and it was held the judgment in the first action was a bar to the second. There, although the parties were nominally different, nevertheless the doctrine of res judicata was applied, on the ground the parties in interest were the same.

■ It is not important to determine whether Hickox is a necessary or even a proper party to the “'present suit. The utmost that can be claimed is, that he is a mere formal party, having no interests that can be affected by the result of the litigation, let it go as it may. In fact, by his answer he disclaims all interest in the subject matter of the suit, and shows, as is conceded, that he was used in the transaction merely as one of the instrumentalities by which Bead attempted to convey the Illinois lands to his wife. Had Bead been of sound mind, Hickox would have subserved the purpose of a mere conduit, through which the title to the lands would have passed from him to his wife, and nothing more. The bill, in this case, seeks no relief whatever of Hickox, and if he has any possible interest in this question of estoppel, it is clearly, in the light of his own answer, in favor of sustaining the former adjudication. But, as before stated, we do not regard him as having any legal interest in the subject matter of this suit, or the vital question upon which it depends.

The further point is made, that even conceding the general current of authority upon the subject of estoppel, so far as it affects the present controversy, to be as we have stated, still it is claimed that under the decisions of Indiana the adjudication in question would not be conclusive of Bead’s insanity in a subsequent suit like the present, in that State. If this claim is justified by the actual decisions of that State, it must be confessed that it affords a conclusive answer to the chief ground upon which the present decree is assailed. The case mainly relied on in support of this position is Roberts v. Robeson, 27 Ind. 454, and it must be conceded that if that was the only evidence of the rule in that State upon the subject, the case would seem to justify the conclusion which defendants in error draw from it; but we regard that case not only unsound on principle, but as inconsistent with both the previous and subsequent decisions of the same court. Reeves et al. v. Plough, 46 Ind. 350; Bates et al. v. Spooner et al. 45 id. 489; Pressler et al. v. Turner et al. 57 id. 56; Davenport v. Barnett, 51 id. 329.

In the case last cited a junior mortgagee filed a complaint to foreclose, making a senior mortgagee a party, and alleging the latter had been paid the amount of his mortgage, but that, notwithstanding such payment, he was fraudulently confederating with others to enforce payment again out of the mortgaged estate, for the purpose of defeating the claim of the complainant. The senior mortgagee made no defence to this action, and there was a decree or judgment pro confesso rendered against him. Subsequently the latter brought an action to foreclose his own mortgage, making the junior mortgagee a party, who set up, by way of defence, the adjudication in the former suit, and the decree in that case was held conclusive upon the question of payment of the senior mortgage. In that case it was urged, as it is in the one before us, that the doctrine of res judicata should not apply, for the reason the parties were not the same in the former as in the subsequent suit; but the objection did not prevail, and the court laid down the general rule, which is in perfect harmony with the current of authority on the subject, that “any of the parties to an action between whom issues have been formed and determined, may, in a subsequent action, where the same issues are tendered, plead a former adjudication as between them, although the parties to the different actions may not all be the same persons.” It will be also perceived that neither the causes of action nor the objects of the two suits were the same. In the former suit the debt secured by the junior mortgage was the cause of action, and the object was to foreclose that mortgage by making it a prior and first lien. The object of the second suit was to enforce the older mortgage as a superior and subsisting lien on the mortgaged property, and the cause of action was the alleged existing debt secured by the older mortgage. Yet the question whether the first mortgage debt had been in fact paid was presented in both cases, and hence its determination in the former suit was conclusive of it in the latter. So in the case before us, while there is no unity in the causes of action or of the objects of the two suits, and only a partial unity as to the parties, yet, as in the cases just considered, the question whether Bead, at the time of making the deeds m question, was insane or not, was involved in both suits, and its determination in the first • must be accepted as conclusive of it in the second, and this conclusion is fully sustained by Davenport v. Barnett, supra.

It is sought, also, in the present case, to avoid the effect of the Indiana decree, on the alleged ground that Mrs. Read herself was insane at the time these proceedings were had, and that by reason thereof a misunderstanding arose between her and her counsel, which resulted in preventing a fair trial on the merits. It is clear, on authority, such a defence can not be made available in a collateral proceeding like this. If what is claimed be true, doubtless an original bill of complaint would lie in the court where that‘decree was rendered, for the purpose of impeaching it, on the grounds stated, or there may be other means of redress afforded by the law of that State; yet Ave are aware of no principle that will sanction the attacking of a judgment or decree of a sister State' for such cause in a mere collateral proceeding, as is sought to be done here. It is true a few cases may be found Avhere this has been permitted, yet we do not regard them as sound in principle, and they are in direct conflict with the general current of authority on the subject. It is conceded that the circuit court of Vigo county had jurisdiction both of the parties to the suit and the subject matter of litigation, and such being the case, the decree there must be held conclusive on the parties until reversed or othenvise set aside by some direct proceeding for that purpose. It is not claimed or pretended that the decree could be thus collaterally attacked in the State where it was rendered, and to permit it to be done here would be to wholly disregard that provision of the national constitution, and the act of Congress carrying it into effect, Avhich provide that the record of a judgment of a sister State, when properly authenticated, shall be entitled, when offered as evidence in another State, to the same faith and credit which it is entitled to in the State from which it is taken. This, of course, is not permissible. This conclusiveness which is uniformly given to the judgments of a sister State, is now, by the weight of modern authority, extended to the judgments of foreign countries, and the rule has been fully recognized by. this court.

The decree of the circuit court is reversed, and the cause remanded ■ for further proceedings in conformity with this opinion.

Decree reversed.

Mr. Justice Scott,

dissenting:

The questions presented by this record are of unusual importance, and I therefore feel at liberty to state fully my views concerning them. The discussion of them by counsel presents a wide field for investigation. The decisions bearing on the questions discussed present a great contrariety of reasoning, and it must be admitted it is not always consistent. Much of what has been said by text writers and courts in them discussions, was no doubt induced in many instances by the peculiar equities of the cases under consideration. An analysis of all the cases to which the attention of the court has been directed, would involve no inconsiderable labor. Nothing more will be attempted than to state briefly the conclusions I have reached from a consideration of the numerous cases cited bearing directly or remotely on the questions involved.

Concerning many of the principal facts both parties agree. On the 26th day of April, 1877, Ezra Bead, since deceased, then a resident of Vigo county, in the State of Indiana, during what proved to be his last illness, conveyed, for a nominal consideration, the real estate which is the subject of this litigation, and which is situated in Co.ok county, in this State, to Marvin M. Hickox. On the same day Hickox, for a like nominal consideration, conveyed and warranted to Susannah M. Bead, wife of Ezra Bead, the same property by the same description. The conveyance to Hickox was made with a view to have him convey the same property to the wife of his grantor, and for no other purpose. It is also an admitted fact that on the same day the conveyances in this case were made, Ezra Bead conveyed certain real estate, which he then owned in Yigo county, directly to his wife. The property so conveyed, directly and indirectly, to his wife, was of considerable value, and comprised nearly all the valuable property the grantor then owned. The transaction took place shortly before the death of the grantor.

A bill was filed in the proper court in Yigo county, in Indiana, to set aside the deed from Ezra Bead to his wife, Susan-nah M. Bead, for the real estate situated in that county. In that bill it was charged, in one paragraph, that for over a year before the making of the deeds, and at the time of making the same, defendant had and used great and extraordinary influence over the mind of her husband; that when such instruments were made he was old and infirm, and greatly enfeebled in body and mind, so as to be easily influenced and controlled by defendant, and was from such weakness of body and mind incapable of making a fair disposition of property, and by means of threats, persecutions and importunities, and by personal violence towards her husband, not only at the time of making such deeds, but for a long time prior, and by threats to burn and destroy his property, he was induced, by the undue and improper influence of defendant, to make and deliver to her the deeds for the property described in the bill. In another paragraph it is charged, the grantor, at the time of executing the deed, was of unsound mind, and for that reason the deeds were void; The bill in that case was filed by the present complainants, who are the children of Ezra Bead by a former wife, except the husband of Sarah 0. Hanna did not join with her in the suit, and was against Susannah M. Bead, widow, and Broady and Parke Bead, minor children of the same father by his surviving wife. The case seems to have been tried before the court and a jury. No particular fact was found,—the jury simply returned they “find for the plaintiffs,” without stating what they found. . On the coming in of the verdict it was “ordered, considered and adjudged by the court that the matters and things alleged in the complaint, and in each paragraph thereof, are true as therein alleged. ” It was then further adjudged and decreed that Ezra Bead conveyed the real estate described in the bill as being situated in Vigo county, to defendant Margarette S. Bead; that he executed such conveyance because of the undue influence and fraudulent conduct of defendant, and that when he so made and executed such deed he was of unsound mind, and was from that cause incapable of making and executing such an instrument.

The bill in the case now before this court was filed in the circuit court of Cook county, in which county the property in controversy is situated, by the same complainants as in the bill in the State court of Indiana, except the husband of Sarah 0. Hanna is joined with her as a co-complainant, and is against the same defendants and Marvin M. Hickox, and is to set aside the deed made by Ezra Bead to Hickox, and the deed from Hickox to defendant Susannah M. Bead. As a ground of relief it is set forth that defendant, by “wiles and devices, ” completely subordinated her husband to her will, and by threats that if he did not convey to her all his property she would destroy the same, defendant so worked on his mind that on the 26th of April, 1877, while prostrated with disease and completely under her control, and while complainants were by her orders excluded from his presence, he conveyed the Cook county real estate, described in the bill, to defendant, who now claims title under that deed. It is further charged that at the time of making and delivering such deeds the grantor was, and continued thereafter until his death, wholly insane, and incapable of making any instrument or conveyance whatever. A copy of the. bill and of the decree in the case in the State court of Indiana are made a part of this hill. There was a suggestion of the death of Marvin M. Hickox and of the insanity of Susannah M. Bead, and the administrator of Hickox and the guardian of Mrs. Bead were made defendants, both of whom answered the bill. The answer of the guardian of Mrs. Bead submits if it shall be proved that Ezra Bead conveyed the property in question to Susannah M. Bead, he will insist such conveyance was made for the purpose of providing maintenance after his death for his wife and her children, because he had made large gifts of property to complainants, and that he made the conveyances to equalize the gifts which he had bestowed; that if the circuit court of Vigo county made such a decree as is alleged, he will insist it was not upon a full and fair .hearing, and that, either by reason of an insane condition of mind or from some unknown.cause, his ward would not permit her counsel to present her side of the case, but directed them to withdraw from the case, and in fact to allow the finding and decree to be entered as by default.

Evidence was offered by complainants, on the hearing of this cause in the circuit court of Cook county, to show the parties in the present suit were identical with thé parties in the suit in the circuit court in Indiana. A witness familiar with all the parties in interest, stated the parties are identical, except the husband of complainant Hanna is joined with her in this suit as a co-complainant, and was not in the suit in Indiana. Proof was also made that the deeds for the real estate situated in Indiana and in Illinois were all executed on the same day, and perhaps within a few minutes of each other. No evidence was offered by complainants to sustain the allegations contained in the bill, of undue influence exercised by defendant over the grantor in the deeds, or as to the allegation touching his insanity, other than the certified record of the circuit court of Vigo county, Indiana, to set aside the deed to the lands in that State, hut the court sustained the objection to its admission.

Touching the' mental condition of the grantor, defendants introduced testimony that showed he was at the time of the execution of the deeds in the full possession of his mental faculties, and had hitherto been, and fully understood the effect of the deeds he was making. On this branch of the case the testimony is quite full, and is very satisfactory. His attending physician was present when the deed to the Chicago property was executed, and says he signed it as a witness, and that there was nothing wrong about the grantor’s mind, and that he was perfectly capable of transacting business. Other intelligent witnesses present at the time express the same opinion. The grantor was himself a physician, and the proof is, he practiced his profession up to and during his last illness. It is proven Mrs. Read was incompetent to understand or manage the defence of the suit brought against her and her children in the State of Indiana, and that in a fit of excitement she refused to joroceed, and directed her lawyers managing the case for her to withdraw from the case. One of her counsel, long before the case was tried, refused to act for her because he considered Mrs. Read insane, and incapable of controlling her litigation. On the evidence submitted the court dismisssed the bill, and complainants bring the case to this court.

The only ground relied on for a reversal of the decree of the court below is, that the circuit court improperly excluded the record ” of the circuit court of Indiana, when offered as evidence to sustain the allegations of complainants’ present bill. It is insisted the parties are identically the same in both proceedings, that the property in their present suit is the same mentioned in'the proceedings in the Yigo county circuit court, and that the execution of the deeds was one and the same transaction, and hence it is said, as the record of the Yigo circuit court is conclusive evidence of the facts found by the decree of that court, it is also conclusive evidence of the same facts alleged in the bill in this suit. It will be perceived the argument assumes, first, the parties in both suits are identically the same; and second, that the subject matter of the suits is the same. Neither proposition is warranted by the record. Literally the parties are not the same. In the case now before this court, the husband of one of complainants is a co-complainant with her, and Marvin M. Hickox was, and since his death his administrator is, a defendant, neither of whom was a party to the bill in the suit in Indiana. Nor is it correct to say the parties in interest are the same. It may be conceded the husband of complainant is a mere nominal party, and has no interest in the subject of the litigation; but it is not so with Hickox. He had an interest in the subject of the suit, as to which he ought not to be barred without a day in court. It will be remembered he conveyed and warranted the property in Chicago to Mrs. Bead, and it was his privilege to be heard in the defence of whatever covenants his warranty implies. The present suit presents the first opportunity he ever had to be heard in the defence of the matters alleged against the validity of his deeds. Nor is it any more accurate to say the subject matter of both suits is the same. The bill in the circuit court in Indiana was to cancel and set aside a deed made by Ezra Bead to Margarette S. Bead, for property situated in that State, and the bill in this State is to have declared void a deed made by the same grantor to Marvin M. Hickox, for property situated in this State, and property which, of course, was never within the jurisdiction of the court in the State of Indiana. The deed made by Hickox to Mrs. Bead was a valid deed, if he took anything under his to convey. As the deed to Hickox shall be determined to be valid or invalid, his deed to Mrs. Bead will be permitted to stand or be set aside. It matters not the reasons for challenging the deeds in both eases may be essentially the same. The reasons assigned why the deeds are invalid, are in no sense the cause of action.

It is familiar law that a judgment or decree of a court of a sister State will have given to it in the courts of all the States the same force and effect as in the State where rendered. Every judgment rendered in any State will, under the constitution and law of Congress, be held to be conclusive in any other State, when the suit is between the same parties and for the same cause of action. Certain identities must appear: First, identity of persons and parties in the same capacity; second, of cause of action; and third, that the judgment proceed from a court having jurisdiction. When all these identities concur, the matter in litigation is said to be res judicata. Applying these general principles, it is clear" the adjudication of the circuit court in Indiana, upon setting aside the deed to the lands in that State, is conclusive in all courts as to that particular question, and no further litigation concerning it will again be permitted between the same parties anywhere, or in any court. But the court in Indiana did not assume to adjudicate concerning the lands in Illinois, and had it done so, it is as well understood as is any truism, its decree could have no extraterritorial effect. If it be conceded the parties in interest are identical in both suits, it must be admitted the subjects of the litigation are different. In one suit the litigation concerns the title to lands in the State of Indiana, and in the other it is as to lands in Illinois.

It therefore follows, if the record in the case in the court in Indiana can be admitted at all in this suit, it must be because it operates by way of estoppel in an action between the same parties concerning a different matter in controversy. Even on that ground it is not admissible in evidence in the present case. The rule usually observed on this subject is, that a judgment, when offered in evidence in a subsequent action between the same parties upon a different cause of action, operates as an estoppel only as to matters actually at issue and determined in the former action, and it is sometimes held when such matters are not disclosed by the pleadings, the same may be shown by evidence aliunde. Accordingly it is understood, a judgment rendered by default admits, for the purpose of that action, the validity of the claim or thing demanded, but does not make the allegations of the complaint evidence in, another suit, even between the same parties, as to another cause of action. The rule rests on the plainest principles of natural justice. A party is not barred unless he has once litigated the facts alleged against him. This doctrine has its application to the case in hand, and a pertinent inquiry is, what questions other than the validity of the deed, which was directly challenged by the pleadings, were litigated in the suit in Indiana ? Was it the question of the undue influence of the grantee over the grantor in that deed, or was it the unsoundness of the mind of the grantor ? As respects these inquiries the record is silent. The jury found no fact whatever, and upon what testimony the verdict and the decree of the court were based does not appear. Besides, there is affirmative testimony by parol, which is allowable, that by reason of insanity defendant was incapable of making any defence, and directed, in a sudden fit of excitement, her counsel to withdraw from the case. As well might the decree have been rendered by default, or upon ex parte testimony. It is idle to say there was any trial, as that term is used in the law, as to the matters and things alleged against defendant. An insane person is incapable of instituting or defending a suit under standingly, and to hold an insane person estopped by the allegations in the complaint in a former suit, when, by reason of mental incapacity, such person was unable to make a defence of any kind in an action involving a different subject matter, although between the same parties, would be to carry the doctrine of estoppel .to an extent not warranted by reason or authority.

On neither ground suggested was the record of the court in Indiana admissible in evidence to prove the allegations of complainants’ bill, and the decree of the circuit court, in my opinion, ought to be affirmed.


text:
    Samuel P. Parmly v. William Walker et al.

      Filed at Ottawa May 12, 1882.

    1. Sale under deed of trust—sufficiency of notice—as to date. A sale of real estate under a deed of trust will not be set aside on the ground that in the notice of the sale no year is named in which the sale is to be made, when the newspaper containing the notice bears the proper date of its issue. The date of the paper will fix the year of the sale with sufficient certainty.
    2. Same—sale before maturity of debt as originally fixed, in the contract—on default in payment of interest. Where a deed of trust securing a debt, due in five years, provides, that upon default in the payment of interest the principal debt shall, upon the election of the holder of the note, become due, a sale made upon a failure to pay interest for the whole debt before the expiration of the original term of credit, will not be set aside.
    3. Same—inadequacy of price. The fact that city property was, four years before a sale under a deed of trust, taken as security for @10,000, and three years after the sale sold for @18,200, is not evidence of inadequacy of price in a sale of the premises for about @6000.
    . 4. Same—misdescription of property in trustee’s deed—correction by trustee. A misdescription of the property sold, in a trustee’s deed, will not affect the validity of the sale fairly and properly made, and the trustee may correct the mistake by making another deed to the purchaser.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.

      Mr. E. S. Williams, for the appellant:
    The property was sold at an inadequate price. There was no proper legal notice of the sale. The notice was without date, and specified no year in which the sale should take place. It was not enough that there should have been a possibility of ascertaining when the sale was to be. The notice should have been such that any prudent purchaser could have been satisfied he was acquiring a good title. This defect may have kept persons from bidding.
    These sales will be set aside upon the slightest proof of fraud or unfair conduct, or a departure from the power. Longwith et al. v. Butler, 3 Gilm. 44; Bloom v. Kensellen et al. 15 Ill. 507.
    Any error in the announcement of the sale which would naturally mislead the public, or deter persons from attending the sale, and bidding, will invalidate the sale. 2 Jones on Mortgages, see. 1852.
    The trustee making the sale employed an agent to buy for the purchaser. This double relation of seller and purchaser the law will not permit. Ex parte Bennett, 10 Vesey, 383; 2 Perry on Trusts, (2d ed.) see. 602, pp. 165, 166,173; Dyer v. Shurtliff, 112 Mass. 165; DeCaters v. DeChaumont, 3 Paige, 178; Building Association v. Caldwell, 25 Md. 420 ; Chambers v. State, 3 Humph. 241; McLeod v. McCall, 3 Johns. 87.
    Mr. Henry Burry, and Messrs. Washburns & Bobbins, for the appellees:
    The notice, taken in connection with the paper, was sufficient to inform the public when the sale would be made. Any omission not calculated to mislead is immaterial. Jones on Mortgages, sec. 1854.
    A person reading this notice, with a view to being present at the sale, could not be misled by this omission; and the notice is sufficient, as has been decided in the following cases:
      Waite v. Dennison, 51 Ill. 321; Finch v. Link, 46 id. 169; Goudy v. Hall, 36 id. 316; Moore v. Neil, 39 id. 261; (Gray v. Howard, 14 Mo. 345.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

On the 8th day of July, 1874, Helen Gr. and Paul Cornell executed a trust deed to Van H. Higgins, trustee, on certain property in Hyde Park, Cook county, to secure the payment of a note of $10,000, due in five years, with ten per cent interest, payable semi-annually. The deed of trust contained a provision that upon default in the payment of interest the principal debt should, uj)on the election of. the creditor, become due. The Cornells having failed to pay two installments of interest, the trustee, in the month of July, 1878, gave notice, by publication in the “Daily News, ” a newspaper published in Chicago, that he would, on “Wednesday, 28th of August, at 11 o’clock in the forenoon, sell” the property. At the sale the property was bid off by William Walker, for the benefit of Caroline Walker, who owned the notes and trust deed. On the 29th day of July, 1881, the Cornells, by deed of that date, conveyed the property to appellant, who brought this bill to set aside the trustee’s sale, and to redeem.

It is contended, first, that the property was sold for an inadequate price. This position is not predicated upon the testimony of witnesses who knew the value of the property at the time it was sold, as none were called by complainant to testify upon that point, but it is said the fact that Higgins loaned Cornell $10,000 on the property in 1874, and as agent of Mrs. Walker sold the property in June, 1881, for $18,200, is proof sufficient to establish the fact that $5965 was not a fair cash value in 1878, when the sale occurred. It does not follow from the fact that the property may have been good security for $10,000 in 1874, that it would be worth more than $6000 in 1878. The value of real estate, especially in a city, is constantly fluctuating. It might, and probably did, during these four years decrease one-half. Again, during the three years following the sale it may have, and doubtless did, largely increase in value. At all events, we do not regard the facts relied upon sufficient to overcome the evidence of Mr. Higgins, who testified that the price paid at the trustee’s sale was the fair value of the property at that time.

It is next urged that the notice of sale was insufficient, as it was not dated, and specified no year in which the sale should occur. The facts in regard to the notice were admitted on the trial, and were substantially the following: It was admitted by the parties that a notice of the sale by defendant Higgins, as trustee of the property mentioned in the trust deed set up in the bill of complaint, was published in twenty-eight successive editions of the “Daily News,” a newspaper published in the city of Chicago, and of general circulation in Chicago and vicinity, the date of the first paper containing the notice being July 22, 1878, and the last, August 22, 1878, there being no Sunday issue of the paper; that the notice had no date affixed to it, and the time fixed for the sale was “on Wednesday, 28th.of August, at 11 o’clock in the forenoon. ” It did not specify the year in which said sale was to take place, but that each paper containing the notice bore date the day of its issue.

The object of a notice is mainly to apprise the public when and where the sale will occur, in order that all who desire may be present and participate in the sale. (Jones on Mortgages, sec. 1854.) It will be observed that the notice was published in the daily paper issued each day, beginning July 22, 1878, and ending August 22, 1878, and announced that the sale would take place “on Wednesday, 28th of August. ” What would a reasonable person, in the exercise of his ordinary faculties, reading this notice, conclude ? Not that the sale would occur in 1877 or 1879, but that it would take place in 1878. We think any person reading the notice and looking at the date of the paper would be fully advised that the sale would occur on the 28th day of August, 1878. This view is fully sustained by the former decisions of this court, where the validity of similar notices came before the court for consideration. Finch v. Sink, 46 Ill. 169; Waite v. Dennison, 51 id. 319; Goudy v. Hall, 36 id. 316.

The next objection urged against the sale is, that Higgins, the trustee, was both seller and purchaser. There is no evidence in the record to sustain this position. Higgins, the trustee, sold the property at public vendue. It was bid off by a person who attended the sale as an agent for the Walkers. So far as the evidence shows, the trustee had nothing to do with the purchase of the property. He made the sale under the power contained in the deed of trust, and Walker became the purchaser, as he had the right to do, in satisfaction of a portion of the debt held by his wife. The sale was public, and all had an opportunity to bid who saw proper, and so far as the trustee is concerned, there is nothing to show that he acted improperly or with partiality.

It is said the sale was made before the principal debt became due. This is a misapprehension of the deed of trust. By its terms, if the interest was not paid at maturity, the holder of the indebtedness had the right to declare the whole debt due, and compel a sale of the property. This election was properly exercised.

It is also urged that there was a misdescription of the property in the deed made by the trustee. Suppose there was, that did not affect the validity of the sale. If the trustee made any mistake in the deed he made to the purchaser, he had the right to correct the mistake by making another deed.

Perceiving no error in the record, the decree of the circuit court dismissing the bill will be affirmed.

Decree affirmed.


author: Mr. Justice Walker

text:
    Lucros B. Otis, Receiver, v. Susan B. Spencer.

      Filed at Ottawa May 12, 1882.

    1. Delivery oe deed—necessary, to pass title. To render a deed of conveyance operative to pass the title there must be an unconditional delivery, or a delivery in escrow.

    2. Same—what will constitute a delivery. To constitute the act of a grantor a delivery of a deed, it must be such as to manifest an intention on his part to make a delivery, and to part with the possession and control of the instrument. This intention may be gathered from acts or words, or from both, and it is not essential that the deed be delivered to the grantee, but it may be to an agent or another person for the grantee.
    3. Where a man, a few days before his marriage, handed a deed of property to his intended wife, saying there was the deed for the house which he had conveyed to her in accordance with his promise and the conditions they had talked of before, and the wife testified that before the marriage the grantor handed her the deed, and after some conversation respecting it she returned it to him for the purpose of having it recorded, and to take care of for her: Held, that in the absence of any evidence contradicting this testimony, or impeaching it, or any circumstance throwing suspicion on their evidence, this very clearly showed a valid delivery of the deed.
    4. Witness—competency—husband and wife. On a creditor’s bill to set aside a deed made by a debtor in contemplation of marriage to one whom he afterwards married, the grantor in the deed is a competent witness in behalf of his wife to testify to transactions and conversations relating to the property, which occurred before the marriage.
    5. Same—of matters affecting credibility of witness. The fact that husband and wife, in their depositions in a suit to set aside a conveyance of the former to the latter in contemplation of marriage, on the ground of fraud as to creditors, failed to testify as to the delivery of the deed, while in their subsequent deposition they do so testify after an amendment of the bill charging that the conveyance was never delivered, will not aiford any just ground for discrediting their testimony.
    6. Fraudulent conveyance—post-nuptial conveyance to wife by debtor. A voluntary post-nuptial conveyance or settlement upon a wife will be set aside in favor of preexisting creditors of the grantor, if he does not retain ample means to discharge his indebtedness.
    7. Same—marriage—as a sufficient consideration. Marriage is a sufficient consideration to support a conveyance of land or marriage settlement, and the grantee is entitled to the same protection, when taking without an intent to aid the grantor in defrauding his creditors, as a purchaser who has paid the full value of the land.
    8. Same—insolvency of grantor not of itself sufficient to avoid Ms conveyance. The insolvency of the grantor at the time of making a conveyance of land to a purchaser, or intended wife in consideration of her marrying the grantor, does not of itself render the conveyance fraudulent as to creditors, when the grantee had no notice or knowledge of such fact, and is not chargeable with fraudulent intent.
    9. Same—as to facts to put grantee upon inquiry. The statement of counsel to the parties to a deed executed in consideration of a marriage agreement, that the conveyance would be good unless the grantor was indebted beyond his means, but it was doubtful whether it could be sustained against creditors, without stating any fact relating to the grantor’s, condition or solvency, or that he was indebted at all, or that the attorney even believed or suspected he was, is not sufficient to put the grantee upon inquiry as to the grantor’s solvency, and hence is no notice of that fact.
    Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Mr. J. L. High, for the appellant:
    Spencer was not a competent witness, under' the ruling in Mueller v. Rebhan, 94 Ill. 142, as the very question in dispute is, whether the property is the separate estate of the wife. The statute has not changed the common law rule, except where the litigation concerns her separate property. The exclusion at common law does not rest upon the ground of interest of the parties, but is based upon grounds of public policy. 1 Phillips on Evidence, 77, and notes; 2 Starkie on Evidence, 550; Reeves v. Herr, 59 Ill. 81; Neubrecht v. Santmeyer, 50 id. 74.
    To constitute a delivery of a deed there must be an existing intention upon the part of the grantor that the act shall have such effect, and such intention must be evidenced by an actual delivery to the grantee, or some person in his behalf, and the grantor must part with all control over the instrument. These three elements must combine to make a valid delivery, and the absence of either element is fatal.
      Cook v. Brown, 34 N. H. 460 ; Maynard v. Maynard, 10 Mass. 456; Wilson v. Cassidy, 2 Ind. 562; Dearmond v. Dearmond, 10 id. 191; Berg v. Anderson, 22 id. 36; Prutzman v. Baker, 30 Wis. 644; Wiggins v. Lusk, 12 Ill. 132; Gunnell v. Cockerill, 84 id. 319.
    If it should be contended that the delivery to Loomis, or to the vendor, operated to pass title, reference is made to the following authorities as conclusive against the position: Herbert v. Herbert, Breese, 354; Bryan v. Wash, 2 Gilm. 557; Hulick v. Scovill, 4 id. 159; Kingsbury v. Burnside, 58 Ill. 310.
    Counsel also argued at considerable length that Spencer being insolvent at the time of the conveyance, and the facts and circumstances were such as to give the grantee notice of his insolvency, or at least put her on inquiry, it was fraudulent as to the grantor’s creditors, citing sees. 4 and 5 of the Statute of Frauds, and Columbine v. Penhall, 1 Sm. & Grif. 228; Compton v. Cotton, 17 Ves. 264; Bulmer v. Hunter, L. R. 8 Eq. 46; Bump on Fraudulent Conveyances, 310; Emerson v. Bemis, 69 Ill. 537; Norton v. Norton, 5 Cush. 524; Eddy v. Baldwin, 23 Mo. 538; Hackett v. Bailey, 86 Ill. 74.
    Mr. Henry B. Masqn, and Mr. Owen F. Alois, for the appellee:
    Delivery was for the first time put in issue at the rehearing in the circuit court. Spencer v. Otis, 96 Ill. 570.
    Record and acknowledgment are prima facie evidence of delivery. Himes v. Keighblingher, 14 Ill. 469; McConnell v. Johnson, 2 Scam. 522.
    In addition to this we have the positive testimony of both grantor and grantee that there was delivery in apt time, and there is absolutely no evidence to the contrary.
    David D. Spencer is a competent witness for his wife on two grounds, either one of which is sufficient, and both combine in this case, viz: the litigation concerns her separate property, and his testimony relates to conversations and transactions occurring prior to marriage. Hurd’s Stat. 1881, secs. 1, 5, “Evidence and Depositions; ” McNail v. Ziegler, 68 Ill. 224; Mueller v. Rebhan, 94 id. 142.
    The conveyance was made in consideration of marriage, which is a valuable consideration, and valid against the grantor’s creditors. Rockafellow v. Newcomb, 57 Ill. 186; Rose v. Sanderson, 38 id. 247; North v. Ansell, 2 P. Wms. 618; Barrow v. Barrow, 2 Dickens, 504; Partridge v. Gopp, 1 Eden, 163; Cadegan v. Kennett, 2 Cow. 432; Compton v. Cotton, 17 Ves. Jr. 264; Ex parte Mayor, Montague, 293; Hardy v. Green, 12 Beav. 182; Fraser v. Thompson, 1 Gifard, 49; Magniac v. Thompson, 7 Peters, 361; Frank’s Appeal, 59 Pa. St. 190; Jones’ Appeal, 62 id. 324; Smith v. Allen, 5 Allen, 454; Andrews v. Jones, 10 Ala. 400; Marshall v. Morris, 16 Ga. 368; Bank v. Marchand, Charlton, 247; Bunnell v. Witherow, 29 Ind. 123; Bonser v. Miller, 5 Oregon, 110; Eppes v. Randolph, 2 Cal. 103; Herring et al. v. Wickham et ux. 29 Gratt. 629; Prewit v. Wilson, 13 Otto, 22.
    Grantee had no notice of any fraudulent intent or insolvency of the grantor, nor was she put upon inquiry. Prewit v. Wilson, 13 Otto, 22; Herring et al. v. Wickham et ux. 29 Gratt. 629.
   Mr. Justice Walker

delivered the opinion of the Court:

On the failure of the State Savings Institution of Chicago, appellant was appointed receiver of its assets, by a decree of court. He, as such receiver, filed a bill to subject the property, the title to which is in controversy, to the payment of the debts of the insolvent institution. The bill alleges that David D. Spencer, one of appellees, who was at the time, and had been some years previously, the president of the institution, was indebted to it on a note for $39,240.73; that appellant, as such receiver, had sued on it, and recovered a judgment; that a part of the indebtedness was incurred as early as the last of December, 1875. The bill also alleges Spencer’s insolvency; that the premises were his homestead, in which he and his family resided up to the time of the failure of the bank. Being wholly insolvent, and in contemplation of a marriage subsequently solemnized between him and Mrs. Spencer, then Susan A. Dennis, he, on the 23d day of November, 1876, made and acknowledged a deed conveying his homestead to her; that the deed was made to hinder, delay and defraud his creditors. Service was had by publication. There being no answers filed, the bill was taken as confessed, and the relief prayed was granted. Defendants subsequently, on leave, under the statute, filed an answer. A hearing was had, resulting in a decree in favor of complainant. The case was brought to this court, and the decree of the court below was reversed, and the cause remanded. It will be found reported in 96 Ill. 570. The bill was amended by alleging that the deed of conveyance for the property was never delivered, and therefore no title passed under it. Another hearing was had, and the bill was dismissed, and the case is again brought to this court.

It is first insisted, that D. D. Spencer, being the husband, was not a competent witness in favor of the wife, and his evidence should not be considered. It is urged that he, under the statute, could not testify in- her favor, except in case her separate property was concerned,—that whether or not this is her property, is the question here litigated. Had counsel taken the trouble to turn to the case of McNail v. Ziegler, 68 Ill. 224, he would have found that the same point was presented, and decided adversely to his position, and he most probably would not have urged the point. If he had turned to the case of Mueller v. Rebhan, 94 Ill. 149, he would have found that even if her separate property was not concerned, he was a competent witness, and might testify to transactions and conversations occurring before the marriage. The testimony of the husband related only to such transactions and conversations, in this case. We are satisfied with the construction there given, and do not have the slightest disposition to overrule or modify those cases.

Having disposed of this preliminary question, we shall proceed to the consideration of the important questions of the case. The fact that the deed vras made, acknowledged and recorded, is not contested, but it is denied it ever became effective, for the want of a sufficient delivery. From the long line and numerous decisions of this court the rule is well settled, without referring to the decisions of other courts, that to render a deed of conveyance operative to pass the title, there must be an unconditional delivery, or a delivery in escroto. This has been announced in almost every volume of our reports, and if it had not been, the rule is so elementary as to require the citation of no adjudged case for its support. We are not aware that the rule has ever been denied. But what acts constitute such a delivery has been the subject of much controversy, and we have held in many cases that the act must be such as to manifest an intention by the grantor to make a delivery, and to part with the possession and control of the instrument-; and it has been said that intention may be gathered by acts, by words, or by both. It has been said it is not essential that the deed be delivered to the grantee, but may be to an agent or another for the grantee. This has been so repeatedly said that it should be familiar to the entire profession, hence we refrain from referring to the cases.

Was the deed delivered by the grantor to the grantee in this case, is the first and an important question. Mrs. Spencer swears that on the 11th, 12th or 13th of December, 1876, he handed her the deed, and after some conversation relating to it, she returned it to him for the purpose of having it recorded, and to take care of it for her; that she did not remember seeing it after he gave it to her on the date referred to, until the 26th of August, 1877, when she gave it to Judge Grant, her attorney, with some other papers and her will, to take care of in her absence; that she was extremely busy preparing for the wedding, and for that reason did not remember the details; that she was positive she saw the deed at that time. Her husband testifies that on the 12th or 13th of December, 1876, “I gave her the deed, saying to her, 'there is the deed of the house on Thirty-ninth street, which I have conveyed to you in accordance with my promise and the conditions we have talked of,’ or words to that effect, ” and the testimony shows that he was to convey to her this property if she would marry him. This evidence most assuredly is clear and distinct, and if entitled to belief, proves that the deed was delivered. The evidence is not contradicted. It is not improbable or unreasonable. It is consistent, and bears no marks that should condemn it as untrue. It occurred as we would naturally expect under such circumstances. Had it been more formal, it would have been urged that it was so done to prevent suspicion of fraud. It is true that the parties have a large interest in the event of the suit; but the legislature has said that the testimony is competent, and we are compelled to so receive it, and we have no right to reject or disregard it unless contradicted or overcome by other testimony or circumstances. There is the evidence of no witness that impeaches their character for truth, or rebuts their testimony.

It is, however, urged, that this evidence, in their second depositions, is different from that when they testified before. They, in their last depositions, testify as to the delivery of the deed, because that had been made an issue in the ease after their first depositions had been taken. Why should they, when they first testified, when the delivery of the deed was virtually conceded by the bill then on file ? This does not tend, in the slightest degree, to impair or throw on their evidence the slightest suspicion. Appellant seems to think that in some manner its weight is impaired, becaupe they knew, when they testified, that to recover, a delivery of the deed must be proved. We fail to appreciate the force of the objection. If this were a ground for disregarding evidence, it would overcome that of most, if not all, intelligent witnesses, as such witnesses know the relevancy and importance of their evidence at the time they testify. It would be to place a higher estimate on the evidence of the ignorant than the intelligent, and to render the evidence of attorneys worthless, because they would know, when testifying, the issue in the case, and the importance of their evidence. There can be no pretense that this knowledge impaired the credibility of these witnesses. We fail to find anything in the attending circumstances that overcomes, or requires us to disregard, their evidence, and it proves that after the deed was prepared, signed by Spencer, witnessed by. a clerk in the bank and acknowledged by him, and certified by a notary public, he handed the deed to the grantee, his intended wife, but a day or two before their marriage.

Then what was the purpose of Spencer in giving the deed to appellee ? He specified no other purpose than a delivery of a deed by a grantor to his grantee. Is it not the natural, if not the inevitable, conclusion, when a grantor, after making a sale of real estate to another, and prepares a deed conveying the premises, and gives it to the grantee without stating it is for a different purpose, that it is done as a delivery of the deed ? Is it possible, even when nothing is said accompanying the act, for any reasonable mind to resist the conclusion that such was the purpose ? It would seem it could not. Had he intended it for a different purpose, can any one suppose he would not have stated it? She was unconditionally placed in possession and unrestricted control of the instrument, and that was a delivery sufficient to, and did, vest the title to the property in her, and whatever after-wards became of the deed could not affect the title thus vested in her.. After its delivery it was only evidence of the title thus conveyed.

Marriage, from the earliest period of the common law, has ever been held to be a sufficient consideration to support a conveyance of land, and such conveyances have ever been regarded as entitled to as full protection as conveyances made on the most ample pecuniary considerations,— that the grantee is entitled to hold the property precisely as if she had paid in money the full value of the property. This being true, and this conveyance, as all concede, having been made in consideration that the grantee would marry the grantor, that was a sufficient consideration to make it valid and binding on all parties, including creditors, if it can not be assailed on other grounds. These are plain and familiar propositions, that require the citation of no authorities for their support. Some propositions must be considered as axiomatic, and these are of that character.

It is, however, urged, that Spencer was at the time hopelessly insolvent, and that he, in making this conveyance, intended to perpetrate a fraud on his creditors. If this were conceded to be true, will it be contended that a purchaser, paying a full pecuniary consideration for the property, and not intending to aid or assist Spencer in committing the fraud, would not be protected, and would be compelled to surrender the property .to the creditors, and lose the money he paid in good faith for it ? Surely not. While the law is vigilant in protecting creditors against the fraud of their debtors, it never despoils or confiscates the property of innocent purchasers for their benefit. Such purchasers have the same right of protection in their rights as have creditors, and it must be remembered that Mrs. Spencer is entitled to the same protection as had she been a cash purchaser, and had paid every dollar the property was worth. If, under the circumstances, such a purchaser would be protected, she must be.

It is, however, insisted, that as the husband of appellee was utterly insolvent, if she knew or was charged with notice, we must presume she was a party to the fraud, and as to creditors the deed is void. If this were true, which we do not concede, where is the evidence that she had notice of the fact ? We fail to find it in this record. She denies all knowledge of it. She says that from what she heard in general conversations with her uncle, with whom she lived, and who was a trustee in the bank of which Spencer was the president, she supposed he was a man of wealth and of high pecuniary and social position, and of the hundreds-of thousands of persons residing in the city, and of 'the twelve or thirteen thousand creditors of the bank, there is not one shown to have even suspected his solvency, much less to have known he was a bankrupt. Then why require of her a knowledge of that which no one else even suspected ? It is true that eight or nine months after, she and all others knew that he was .then a bankrupt, and they may have suspected he was when the deed was made.

But it is said that Judge Grant, who was attorney for her husband as well as herself, said to Spencer, when consulted as to whether he could make a conveyance of the homestead to her as his contemplated wife, informed Spencer such a conveyance, unless he was indebted beyond his means to pay, would be good, but it was doubtful whether it could be sustained as good against creditors. He thinks, but does not positively say, that he in substance afterwards stated the same to her. She, on the contrary, testifies she had no recollection of such a conversation. But if it were conceded, would that be notice of any fact, if pursued, that would have led to notice, as appellant’s counsel insists it was? The witness stated no fact. He did not say that Spencer was indebted a dollar, or that he believed or even suspected he was. He did not say it was so rumored, or had been suggested by any one. He named no fact calculated to arouse a suspicion that Spencer was indebted to any one, much less that he was insolvent. We are unable to see why this should have put her on inquiry. Even if notice would affect the validity of the deed, none is shown, actual or constructive.

That marriage is a sufficient consideration to support a deed or marriage settlement, has become a rule of property, and it has everywhere been regarded and acted upon as unquestioned law, and no one can say the extent of values that would be changed and titles destroyed were it now held that marriage is not a consideration to support a conveyance of real estate. If it is necessary to change the rule, let it be done by the legislature, and its action will be prospective, and not retroactive, to unsettle titles and deprive men of their estates honestly acquired. They should not be deprived of their property as a class, that the creditors in this ease, however meritorious, may get the proceeds of this property.

It is urged that a person indebted can not make a valid marriage settlement; that although not so in form, this conveyance was in substance such a settlement; that Spencer being hopelessly insolvent, it was a fraud on his creditors to make this deed. The power for a debtor to do so is sanctioned by a long line of decisions coming down from an early period, with the single limitation that the graiitee shall not receive the grant to aid or assist the grantor to defraud his creditors. The books abound in cases that support the doctrine, with scarcely an opposing decision. Such was the rule of the common law of- England when it was adopted by our legislature, and no reason is perceived why it is not adapted to our condition, and it is not repugnant to our institutions. It is not repugnant to, but coincides with, a sound public policy, to permit a woman, before assuming the marriage relation, to insist that a suitable provision shall be made for herself and the helpless offspring of the marriage. The public has a deep interest in the welfare of all of its members, and especially the tender and the helpless. Justice does not demand that all other public interests shall yield to that of the creditor class. It has a right to be fully protected in all of its rights, but has no right to demand that all other interests shall be disregarded for the advancement of their interests. Community must be regarded by government as a whole, and its varied, if not infinite, interests are all equally entitled to protection at its hands. But this question is, in principle, settled when it is held that marriage is a sufficient consideration to support a conveyance, and that it must be protected precisely as a conveyance based on a full, valuable consideration. Post-nuptial settlements and conveyances depend on entirely different considerations. In such eases there is no consideration to support the conveyance. The marriage has already been consummated, and that can form no consideration to support such a settlement. In such cases the conveyance is voluntary, and a man must be honest before he is generous. Hence in such cases he must be free from debt, or, if indebted at the time of the settlement, he must retain ample means to discharge his indebtedness, or the settlement will be held fraudulent as to existing creditors. Ante and post-nuptial settlements depend On entirely different principles. The one is made on a sufficient consideration, and the other without any consideration.

On a full and careful consideration of all of the objections urged against the decree we fail to perceive any error, and it is affirmed.

Decree affirmed.