deliveeed the opinion of the Coubt.
To state a deed from husband to wife, made without consideration, is fraudulent as against existing creditors of the husband, is but to reiterate the declarations of an unbroken line of judicial decisions.
There is much reason for the view the alleged ante-nuptial agreement did not enter into and form a part of the consideration which moved the appellee Cora to accept the proffer of marriage, and that the conversations out of which the supposed agreement arose were but the expressions of the hopes, desires and future intention of the parties. Moreover, it was but a vague and indefinite promise she should have a home in her own right when the circumstances and convenience of the husband would admit. Nevertheless, if all claimed for it is conceded, it was but an oral ante-nuptial undertaking.
It was therefore void by the express declaration of Sec. 1, Chap. 59, R. S., entitled Frauds and Perjuries.
As between the parties to it, the consummation of the marriage and performance of the conditions of the contract would have made it valid and effectual.
But consummation of the marriage was not within itself sufficient to avoid the effect of the statute (McAnnulty v. McAnnulty et al., 120 Ill. 26; Richardson v. Richardson, 148 Ill. 567), and the rights and interest of creditors of the husband intervened before the agreement in question was consummated by performance thereof.
We think the agreement was without efficacy as against the appellant, who was a creditor of the husband at the time he endeavored to divest himself of the title to the premises involved herein. 8 Amer. & Eng. Ency. of Law, p. 684.
Jt is clear the wife, in her vocation as a teacher of schools, earned $400 prior to the marriage, and that she gave to her husband that sum to be retained by him and applied to the purpose of constructing a dwelling for a home for her.
It does not appear it is true he kept this identical money received from the wife separate from his funds, but it is not to be doubted he regarded himself as the custodian of that amount of money belonging to his wife, and in his hands for the purpose of applying it to the payment of the costs of the erection of a dwelling house for her.
The equities as to this item are so strong we incline to the view a lien in her favor should be reserved against the property superior to right of the appellant as creditor of the husband. She is not, however, entitled to interest upon said sum under any of the provisions of the statute providing for interest. The husband did not promise to pay interest; it was not in the contemplation of the parties he should so account to her, nor does any rule of equity award it to her.
We are .not impressed with the justice of the claim the brother of the wife contributed the sum named as gift to aid in the construction of the dwelling.
He was a carpenter and builder. They applied to him to build a house according to a given plan.
He estimated the cost at a sum some four hundred dollars greater than the amount they desired to apply to the purposes of a dwelling.
After a conference he consented to abate his proposition in the sum named.
Possibly and probably the fact of his relationship operated in some degree to induce him to reduce his bid as a contractor, but we can not conceive the wife obtained thereby any interest in the property which she may assert against a creditor of the husband.
The decree is reversed and the cause remanded, with directions to the Circuit Court to enter a decree that the said conveyance from Alexander Keady to Samuel B. Keady and that from Samuel B. Keady to Cora Keady are fraudulent as against the judgment of the appellant, and that said Cora Keady is entitled to a lien in the sum of $400 against the premises in said deeds mentioned superior to the lien of the judgment. Appellees are of course entitled to the homestead estate in the property. Decree reversed and cause remanded with directions.