28 20 58a 106

Young and Wife v. Graff.

of the court below is reversed, and the cause remanded, with liberty to the defendant to plead issuably.

CATON, C. J., AND WALKER, J. We do not believe the question of the duty of railroad companies to prevent the growth of weeds upon their track, is presented by this record, and decline giving any opinion upon that question.

ANDREW H. YOUNG AND WIFE, Plaintiffs in Error, v. JOSEPH GRAFF, Defendant in Error.

ERROR TO SUPERIOR COURT OF CHICAGO.

Where a feme covert voluntarily conveys real estate, which she holds in her own right, by a deed of trust, to secure a debt due by her husband, equity will hold it liable, and will decree a sale.

If the estate mortgaged is claimed as a homestead, or greatly exceeds in value the amount for which it is encumbered, a strict foreclosure should not be allowed; unless the homestead right has been waived, the sale should be made subject to that right.

THIS bill charges that defendants were married in 1838; that on the 20th of July, 1855, defendant Andrew bought, with fraudulent intent, of Thomas Speer, lot one, block ninety, school section addition to Chicago, and paid for it with his own money, but at the time of the purchase and with the fraudulent intent thereafter mentioned, he put forward his wife as the actual vendee, and had the deed taken to her by the name of Ellen Coughlin. Charges on information and belief that defendant Ellen was cognizant of the intended fraud, and co-operated in carrying out the same.

Charges that Young had the purchase in that way for the purpose of raising money, he being supposed to be insolvent, and that he did raise money and particularly on the 14th of May, 1858, on which day said defendant Andrew negotiated a note of $2,700 at Greenbaum Brothers, and said Ellen executed as security a trust deed upon the property aforesaid.

That said note and trust deed were purchased by one Coffin

Young and Wife v. Graff.

S. Brown, and complainant bought of Brown, June 9th, 1859, and paid a good price therefor.

That before that, defendant Andrew had borrowed $116 of one Magill, and given a judgment note for that sum, signed by himself and said defendant Ellen, by the name of Ellen Coughlin; that judgment was entered upon said note March 24th, 1857, and execution issued for $128.80. That defendant Andrew paid the amount of the execution, all but $16, and gave the sheriff a receipt which he held of Magill, for $16, and sheriff receipted in full. That in fact, that $16 had already been allowed in taking the judgment. That the sheriff discovered that he had been imposed upon, and made a demand for the balance, and returned the execution only partially satisfied. That an alias issued, and the property aforesaid was sold thereon, November 20, 1857, to Clarkson & Tree, plaintiff's attorneys, who subsequently obtained a deed therefor, and who conveyed to the complainants.

That complainants caused the property to be advertised for sale upon the trust deed; and that said Andrew and Ellen, for the purpose of defrauding complainant, filed a bill in the name of Ellen Coughlin against complainant, the trustee, Magill, Brown and others, setting up an agreement for an extension of the $2,700, on the part of said Brown, and the sale on execution, and that said Ellen was ignorant thereof; which complainant alleges, was in fraud of his rights.

That defendant Andrew testified as a witness, in said mentioned suit, and sets out his testimony. Complainant says he was ignorant that said Ellen and Andrew were man and wife at the time said bill was filed. That said bill was subsequently dismissed, the premises sold, and complainant purchased the same.

Complainant demanded possession of said Ellen, which she refused; charges that defendants have carried on for years a systematic scheme of fraud.

Prayer that the said Andrew H. Young and the said Ellen, his wife, and all persons claiming under them, may be absolutely bound and foreclosed of and from all right and title in and to the premises, and decreed to join in a conveyance of

Young and Wife v. Graff.

the same to complainant, and to surrender the premises; and for general relief.

Acknowledgment by Henry Greenbaum, that Ellen Coughlin, a widow, "who is personally known by me to be the same person whose name is subscribed," etc., etc.

The answer of defendants admits the marriage; says that the property purchased in 1855, was with money earned by their joint labors; that Andrew was a spendthrift, and addicted to drinking, and in order to preserve a homestead to said Ellen and a family of four children, it was agreed the lot should be purchased for said Ellen's exclusive benefit, and should so become the property of said Ellen, so as to be entirely out of the control of said Andrew.

That said Ellen greatly feared that it would otherwise be wasted, and the family left in want and without a homestead; that the lot was accordingly deeded to Ellen, under her maiden name of Coughlin, there being no concealment from the vendor that she was the wife of said Andrew, and no fraudulent intent, the said defendant supposing that if the deed came to Ellen Young by that name, said Andrew would be able to control the property and sell and squander it; that said Andrew was not in debt at the time of the purchase, to exceed $50. Denies all idea of fraud, and Ellen declares her only intention to have been to preserve said property as a homestead for herself and children.

Denies the raising of money except as follows: that said Andrew by great importunity, drove said Ellen into giving a mortgage to raise $1,200, for the sum of $1,300-the excess of $100 being usurious interest; and afterwards she was induced to mortgage for the sum of $336, afterwards for $250, to pay a bill for liquors for said Andrew, which said Andrew afterwards paid, and for $450 after that. That said Andrew paid large amounts of usurious interest, and that on the 11th of August, 1857, there being $2,000, in all, due upon the various mortgages, including usurious interest on them all, they were united in one for that amount; that in May, 1858, said Ellen was persuaded to give a new trust deed for $2,700 and the old indebtedness was taken up, the $700 being usurious in addi

Young and Wife v. Graff.

tion to what had already been included in the $2,000. But said Ellen denies that she had anything to do with the negotiations, and denies that she represented herself to be a widow, and says that although the acknowledgment to the deed does so describe her, yet it was never read to her, nor was she made acquainted with its contents or that of the deed. Denies that Brown purchased the note and deed upon representations as stated. Denies that complainant bought of Brown upon the representations that said Ellen was unmarried, and that complainant paid a good price therefor, but says that complainant purchased as a matter of speculation, and with full knowledge that said Ellen was said Andrew's wife; that complainant resided within thirty yards of said Ellen, and had for years, and knew the fact, which was notorious, that said Ellen and Andrew were married. Admits that Andrew borrowed $100 of Magill, but denies that any representations were made; but said Ellen declares that said Andrew informed her, said Ellen, that Magill required her to sign the note as security, by the name of Ellen Coughlin, because the real estate stood in that name, and accordingly a note was given for $116, sixteen dollars being interest. States that $16 was paid and a receipt taken, and $100 remained due. Judgment was afterwards rendered in Magill's favor, and against said Ellen and said Andrew, for $111.02, but denies that that sum was due, and says the judgment was void as to said Ellen.

Andrew denies any fraudulent intention, and declares that he paid the amount of the execution, which was indorsed, satisfied; but afterwards returned satisfied only in part. Says they had no personal knowledge of the alias or the sale thereon until after the sheriff's deed was given.

Has no knowledge that complainant bought of Clarkson & Tree; but says that complainant knew at the alleged time of purchase, that said Andrew and said Ellen were married, and claimed that the judgment and proceedings thereon were fraudulent and void as to said Ellen.

Charges that complainant made the purchase on speculation, and with the intention, by threats of a criminal prosecution, to force these defendants to give up this real estate, worth

Young and Wife v. Graff.

six or seven thousand dollars, for the small sum which said speculation cost said complainant; and said Ellen states that said complainant and his solicitors made various threats against her and caused her arrest on a charge of conspiracy. Answer of Ellen details threats made against said Ellen, and to her face while alone with her little children.

Denies knowledge of the sale on execution until after it took place, but said Ellen says that said Andrew stated that said sale was fraudulent; that he paid the judgment; that the sale would be set aside, and afterwards that it had been arranged; and she being ignorant of the forms of law, relying upon said Andrew's statements, allowed the time for redemption to expire, which otherwise she would not have done.

Denies that complainant was ignorant of the relationship of the defendant, and says that he was well aware thereof; and states that no concealment was practiced. Defendants deny knowledge of sale on trust deed, but say if any such took place it was invalid and void. That the deed was void as not being properly acknowledged, and likewise all proceedings thereunder.

Deny the fraudulent scheme charged, and any want of knowledge on the part of parties dealing with defendants. Further answering, say that said premises was the only real estate owned by said Ellen, and that the same was put in the maiden name of said Ellen to preserve it as a homestead for herself and children, and with no fraudulent intent, and that there could have been no such intent, as said Andrew was at the time entirely out of debt; that all of the mortgages were subsequently given, and have been paid, except this trust deed, upon which the defendants intend to pay all the money advanced, and legal interest, and that the whole sum due is not equal to one-fourth value of the estate.

That the premises were, at the time of the levy of the execution and the giving of the trust deed, ever since have been, and still are, the homestead of the defendants, and the actual home and residence of the defendants and their children.

That there is a dwelling-house upon said real estate, which was there at the times aforesaid, and occupied as the family