delivebed the opinion ob the Coubt.
Appellee filed a bill in chancery seeking to set aside certain conveyances from Lewis E. Dillman to E. Corbin Dillman and from E. Corbin Dillman and wife to Maria E. Dillman out of the way of an execution issued on a certain judgment received in the Circuit Court of Will County by appellee against Lewis E„ Dillman on the 27 th of February, 1891, for $6,638.
Upon a hearing the Circuit Court rendered a decree setting aside the conveyance upon the ground that they were fraudulent as against the rights of appellee. To reverse that decree appellant prosecutes this appeal and urges that the court had no jurisdiction to render the decree; that the bill does not sustain the decree; that there is a va- ' e nance between the bill and the evidence; that the decree is against the evidence and that the proofs show that Maria E. Dillman is the legal holder of the property involved, free from any fraud.
The evidence shows that on the 2d of October, 1883, Lewis E. Dillman owned and occupied a homestead in Joliet, Illinois, the property in question, worth about $9,000; that on that day he conveyed it for the consideration of $10 to his son E. Corbin Dillman, who then conveyed to Maria E. Dillman, the wife of Lewis E. Dillman, for the same consideration. At that time Lewis E. Dillman was liable to appellee as guarantor upon two promissory notes 'for the sum of $8,000 each, executed April 18, 1883, and upon which appellee recovered judgment against appellant on February 27, 1891. The suit which resulted in such judgment was commenced in January, 1888, and in May, 1888, an attachment in aid was sued out and levied upon the property in question. Appellee recovered judgment m personam and in attachment, and on the following day sued out an execution, special and general, and placed the same in the hands of the sheriff. This execution'was in the hands of the sheriff when the bill was filed, March 21,1891.
It is contended by counsel for appellant that the bill is a creditor’s bill, and that to maintain a bill of that character it is necessary to aver and prove the issue and return of an execution unsatisfied. Until that has been done he insists the complainant’s remedy at law has not been exhausted and he has no standing in a court of equity. Where a creditor simply seeks to obtain satisfaction of his judgment out of some equitable estate of the judgment debtor which is not liable to levy and sale under an execution at law, he must exhaust his remedy at law by obtaining judgment and having an execution issue and returned nulla Iona before he is entitled to relief from a court of equity; but if he seeks to remove a fraudulent conveyance out of the way of his execution he may file his bill as soon as he obtains judgment. Weightman v. Hatch, 17 Ill. 286; Newman v. Willetts, 52 Ill. 98; Wisconsin Granite Company v. Gerrity et al., 144 Ill. 77.
It is further insisted that the bill does not sustain the decree for the reason that it alleges actual fraud on the part of Dillman in making the transfer; seeks relief entirely upon the ground of actual fraud, and contains no sufficient averments on which to base a finding of fraud at law, while the proofs show that no actual fraud was intended and in any view can not be regarded as going further than establishing that the transfer is a voluntary settlement upon Dillman’s wife. We are disposed to regard this contention as rather “ fine spun.”
The allegations of the bill are in substance that, on the 2d of October, 1883, appellee was a creditor of appellant; that on that day appellant conveyed his property to his wife without consideration; that appellee has recovered judgment upon his claims; that he is prevented from selling the property under an execution because of such conveyance; that appellant is insolvent and has no other property out of which the judgment could be made; that the conveyance is a mere sham and that Maria E. Dillman holds the property in trust for appellant. We think these allegations are sufficient to support the decree. If proven, the law presumes the conveyances were fraudulent and void as to existing creditors. More was really averred in the bill than was necessary. A voluntary conveyance, made when the grantor is indebted, is presumptive evidence of fraud; and a fraudulent intent will be presumed, from the fact that the party conveying was indebted at the time, and that as to preexisting creditors every conveyance not made on a consideration valuable in law, is void. Montz v. Hoffman et al., 35 Ill. 553; Harting v. Jockers et al., 136 Ill. 627.
It is claimed that the conveyance was not voluntary, but was made in consideration of money advanced by the wife to Dillman from time to time before then. The advances attempted to be set up. amounted to about $2,000, and were made so long before the date of the deed as to be barred by the statute of limitations. We entertain no doubt that the conveyance was voluntary.
At the time of the conveyance Dillman retained shares in two corporations which, it is claimed, were sufficient to enable him to meet all his obligations in the usual course of business.
These shares were of an uncertain value. One corporation has never paid anything and the other soon failed, its stock becoming worthless. All the property retained by Dillman was of a speculative character and eventually became worthless. It does not appear that it had ever a marketable value.
A careful consideration of the evidence satisfies us that the bill is fully sustained by the proof, and that the decree of the Circuit Court should be affirmed.