the five-years residence thereon required; (3) that if, at the time the mortgage was execllted, the right to a patent was perfected by a residence on the land for five years, the fourth section of the homestead act did not apply. Leave was given to amend the answer if it could be shown that in fact Webster had resided five years on the premises, or become entitled to a patent at the time the debt was created and the mortgage executed.
PULLMAN PALACE CAR Co,1
SAME v. ALLEN PAPER CAR-WHEEL Co. SAME v. TRUSTEES PULLMAN LAND ASS'N.
(Oilrcuit OOUTt, N. D. Illinois.
December 23, 1885.)
HUSBAND AND WIFE-CONVEYANCE OF WIFE'S LAND-ILLINOIS ARY 22, 1847.
Under section 2 of the act of February 22, 1847, (2 Scates, T. & B. ill. St. 965,) when a married woman, above the age of 18 years, and not residing in the state of illinois, executed a deed in another state. where she resided, the mere signing, sealing, and acknowledgment of the deed by her husband was sufficient, although his name did not appear in the granting clause of the instrument.
Ejectment. S. Corning Judd, and Ritchie, Esher ff Judd, for plaintiff. Alfred Ennis, Lyman ff Jackson, and Flower, Remy cf; Gregory, for defendants. GRESHAM, J. These are actions in ejectment to recover lands upon which the city of Pullman in part stands. Juries were waived, and the cases were submitted to the court upon a stipulation that if the following instrument should be held valid and binding as a deed of conveyance by husband and wife, judgment should be entered for the defendants:
"This indenture, made this twenty-sixth day of May, A. D. 1856, witnesseth, that I, Christina Lynn, sister and heir at law of Henry Millspaugh, deceased, who was a recruit of Lieutenant T. W. Denton, of the 13th regiment, United States infantry, war of 1812, with Great Britain, of the county of St. Clair and state of Michigan, party of the first part. in consideration of the sum of $43 in hand paid by Milton and Thomas C. McEwen. of the county of Orange and state of New York, party of the second part. the receipt of which is hereby acknowledged, do hereby release. grant. bargain. and quitclaim unto the said party of the second part, their heirs and assigns, forever, all her right, title, claim. and interest in that certain tract of land granted by the United States unto David Millspaugh and Christina Lynn. the brother and sister and only heirs at law of Henry Millspaugh, deceased, as follows, to-wit: The south-east quarter of section numbered fifteen, (15,) in township num1
See 7 Sup. Ct. Rep. 730.
SCHLEY V. PULLMAN PALACE CAR CO.
bered thirty-seven, (37,) north, of range numbered fourteen (14) east, in the district of lands subject to sale at Chicago. state of Illinois, containing one hundred and sixty (160) acres, by letters patent bearing date of November 23, A. D. 1849, and founded upon warrant No. 27,495. reference being made to said patent will more fUll)' appear,-to have and to hold the said premises, with all the appurtenances thereunto belonging, or in anywise appel'taining· .J;o their only proper use, benefit. and behoof of said parties of the second part, their heirs and assigns, forever. "In Witness whereof. the said grantor have hereunto set our hands and seals, the day and year first above written. "CHlUSTINA LYNN. [Sea1.] "WILLIAM LYNN." [Seal.l
Following is the certificate of OBED a justice of the peace, of St. Clair county, Michigan, dated May 27, 1856. The officer certified that on that day Christina Lynn and William Lynn, her husband, personally appeared before him; that he knew them to be the persons who executed the foregoing instrument; that they acknowledged it to be their free act and deed; and that after he had personally examined the wife, separate and apart from her husband, and had fully informed her of the contents, she acknowledged that she executed the same freely, and without compUlsion from her husband. Section 2 of the act of February 22,1847, (2 Scates, T. & B. St. Ill. 965,) declares that when any m.arried woman, above the age of 18 years, and not residing in this state, joins with her husband in the execution of any deed. mortgage, or conveyance of any real estate situated within Illinois, she shall be barred thereby of all the estate, right, title, interest, and claim of dower therein, the same as if she were unmarried and of full age; and it is further declared that such a married woman may acknowledge such deed, etc., as if she were un· married. This statute was in force when Mrs. Lynn and her husband executed the deed in Michigan where they then resided, and she was at that time above the age of 18. It is insisted by counsel for the plaintiff that the statute required the husband to be a joint grantor with his wife; that his mere signing, sealing, and acknowledging the deed was not sufficient when his name did not appear in the granting clause or body of the instrument; and that it was therefore inoperative and void. It was only in substantial compliance with this statute that the wife could convey title to her lands. The husband was required to join her in the execution of a deed. Did the husband so join in the execution of this deed? That he intended to do so, and thought he had, admits of no doubt; and it is equally clear that both the wife and husband undertook in good faith to convey their entire interest and estate in the premises to the grantees. The husband signed, sealed, and acknowledgedl the deed, to enable his wife to convey her title, and to convey any claim or right, present or contingent, that he had in the land. The wife and her husband rested and no doubt died in the belief that they had joined in the execution of a deed in compliance with the statute; and it remained for some one. after the lapse of 29 years, to discover, as he supposed, that they had utterly
failed to accomplish what they undertook to do, and what they supposed they had done. Courts should uphold deeds and other contracts when the intention of the parties is clear. Although the husband's name does not appear in the body of the deed, he signed, sealed, and delivered it, and thus joined his wife in its execution. Johnson v. Montgomery, 51 Ill. 185, was a suit for assignment of dower. On January 26,1853, Johnson, a resident of Ohio, executed in that state a deed conveying his lands in Illinois to Montgomery. Johnson's wife signed the deed with her husband, and acknowledged it before a proper officer. The certificate of acknowledgment was in conformity with the statute, but the body of the deed did not describe Johnson's wife as a grantor, or name her in connection with dower, or in any other way. In holding that this was a valid deed, and sufficient to relinquish the wife's right of dower, under section 21 of the act of 184-5, regulating conveyances, the court said that apt words of grant in the body of the deed were unnecessary, as the wife was required to join her husband in the deed, not to tra,nsfer title from her, but merely to extinguish her contingent right of dower. When Mrs. Lynn and her husband executed their deed in 1856, the latter had the rights which the common law gave him in his wife's real estate in Illinois. He was entitled to the rents and profits during their joint lives, and a life-estate thereafter if he survived bis wife. While his rights differed in some material respects from tbe inchoate right of dower, still the reasoning in this case tends to support the deed under consideration. In Miller v. Shaw, 103 Ill. 217, the court was required to pass upon tbe validity of a married woman's deed for ber separate property in Illinois j the husband having signed and acknowledged the deed, his name not appearing, however, in the granting clause. The statute in force at the time, (section 21 of the act of 1845,) provided that when any husband and wife residing in this state wished to convey the real estate of the wife, it should be lawful for the husband and wife, she being above the age of 18 years, to do so by the execution of their joint deed j the wife being required to appear before some judge, or other officer authorized to take acknowledgments of such instruments, and acknowledge the same, being previously made acquainted with the contents. A deed thus executed and acknowledged the statute declared to be as effective as if executed by the wife before marriage. The court held that this was a valid deed under the statute, and bound both the wife and husband. In Yocum v. Lovell, recently decided by the supreme court of Illinois, but not yet reported, it was held that a deed signed and acknowledged by husband and wife, was sufficient to the homestead right of both, though the wife's name did not appear in the granting clause or elsewhere in the body of the deed. The court say that section 4, c. 52, Rev. St. 1874, declared that no release, waiver, or conveyance of the homestead should be valid, unless the same was in
writing, subscribed by the householder and his wife, and acknowledged as required in the execution of deeds conveying real estate, and that the statute was substantially complied with. Judgments will be entered for the defendants in the three cases.
CURTIS and another v. WORTSMAN, Defendant, and another, Claimant.
Oircuit Oourt, 8. D. Georgia, E. D. November Term, 1885.)
ATTACHMENT-FRAUDULENT CONVEYANCE OR CONCEALMENT OF PROPERTYLEVy-EVIDENCE.
Under a statute authorizing attachments where debtors fraudulently convey or conceal their property liable for the payment of their debts, where a claim is interposed after judgment and levy, the plaintiff has made out a primajacie case when he has shown that the property seized was in the possession of the defendant in attachment at the time of the levy.
FRAUDULENT CONVEYANCE-WHAT TRANSFERS VOID.
Every assignment or transfer by a debtor insolvent at the time, of real or personal property, or choses in action, to any person, either in trust or for the benefit of or in behalf of creditors, when any trust or benefit is reserved to the assignor, or any person for him, is void. Code Ga. § 1952. Every conveyance of property by writing, or otherwise, or contract of any description, made with intention Lnown to the party taking to defraud or delay a creditor, is void. Id
SAME-INTENT TO DEFRAUD.
SAME-CONVEYANCE VOID-AGREEMENT WITH WIFE OF DEBTOR.
When a conveyance of an entire stock of goods by a debtor to a favored creditor, in payment of a moiety of the debt, and a reconveyance from the creditor to the debtor's wife, she undertaking to become responsible for such moiety, is had in one day, and the wife carries on the business of the debtor in her name, employing her husband as clerk, a strong presumption of fraud exists as against a creditor whose claim for the purchase money of a large portion of the stock is thus defeated; especially is this true where all the conveyances are embraced in one document, paged 1,2, and 3. In a transaction involving the transfer of property between husband and wife, the utmost good faith must be made to appear. The wife must show with great clearness that she was a bona fide purchaser, and that she had no reason to believe that the transfer was made to delay or defraud the creditors of her husband.
SAME-TRANSFERS BETWEEN HUSBAND AND WIFE.
Charles N. West and W. H. Wade, for plaintiffs. Garrard et Meldrum, for defendants. SPEER, J., (chargingjur.lJ:) This case is an attempt by a creditor to subject certain property to the payment of a debt which is due and owing to that creditor by Wortsman, the defendant in attachment here. It is a business affair, and is to be determined by the rules of law. These questions are always important, because, if such disputes are not determined by the principles of law, most injurious consequences will follow in commercial transactions, and public confi· dence in the integrity of business and property will be at great haz-