181 Ill. 361 | Ill. | 1899
delivered the opinion of the court:
A motion was made to dismiss the writ of error on the ground that a freehold was not involved, and that motion was reserved until the hearing. On a bill seeking to have a deed for land absolute on its face declared a mortgage and a right of redemption therefrom allowed no freehold is involved, and in a case of that character a writ of error will not lie directly to this court. (Kirchoff v. Union Mutual Life Ins. Co. 128 Ill. 199.) In Lynch v. Jackson, 123 Ill. 360, and Hollingsworth v. Koon, 113 id. 443, it was expressly held that the question of the right to redeem under a conveyance claimed to be a mortgage does npt involve a freehold, within the meaning of that word as used in section 88 of the Practice act. In the original bill filed by the defendant in error it is alleged that “said instrument, the deed in question, is and of right should be only a mortgage to secure the payment of such sums of money as may be found'due Adamski from your orator, which said sum or sums of money your orator is willing to pay and secure to be paid under the terms of said agreement.” The bill prays for an accounting and that the deed be declared a mortgage. The supplemental bill and the bill in the nature of a bill of review both proceed upon the same ground, and the decree rendered by the court finds and decrees that the deed is a mortgage. Indeed, the right of defendant in error to maintain his bill is predicated on the ground that the deed made to plaintiff in error was a mortgage. Such being the case, under the rule heretofore established by the decisions cited no freehold was involved.
It is, however, claimed that a freehold is involved because the court, in its decree, set aside the deed from plaintiff in error to Lobe. This deed was made pending the litigation, and When the court found and decreed that the defendant in error was entitled to redeem, the mere factethat the deed, to Lobe was set aside as a cloud on the title did not change the character of the bill or the nature of the relief sought. The setting- aside the deed was a mere incident to the right of redemption sought in the bill, and it had no bearing on the real question in controversy between the parties.
The writ of error will be dismissed, and leave will be granted plaintiff in error to withdraw the record abstracts, to be used in the Appellate Court if he desires.
Writ dismissed.
