113 Ill. 181 | Ill. | 1885
delivered the opinion of the Court:
The position taken by counsel for complainants, that this appeal ought to be dismissed because this court has no jurisdiction to hear and determine it, is not tenable. Dobbins v. Cruger, 106 Ill. 383.
This is the usual bill to foreclose a mortgage, and sets forth that Martin E. Bozarth, being indebted to complainants, made his mortgage on the lands involved, his wife, Mary Bozarth, joining with him in its execution, to secure such indebtedness. Among other covenants contained in the mortgage, it appears the mortgagor, Martin E. Bozarth, covenanted, for himself and his heirs, to pay all taxes on the mortgaged premises, but in that covenant his wife does not seem to have joined. Both the mortgagor and his wife are made defendants to the bill, and file separate answers. The mortgagor admitted the making of the note and mortgage, but alleges the transaction was usurious, and that he has paid all that was justly due to complainants. Mary Bozarth, the wife of the mortgagor, admits, as does her husband, the making of the note and mortgage, but avers she had no interest in the land except the prospective right of dower; that the money received by the mortgagor was borrowed and expended by Martin E. Bozarth for his individual use, and that she never received any part of it, and that since the making of the mortgage she has acquired a tax title to the mortgaged premises, under which she claims to be the absolute owner of the property. To the answer, setting up with sufficient fullness the manner in which she acquired the tax title to the lands in controversy, and all matters insisted upon as a defence, the court sustained an exception filed by complainants, and upon her refusal to answer further, a decree was rendered against her as upon default. Thereupon the court decreed a foreclosure of the mortgage, and provided that in the default of payment of the sum found to be due, “all right and equity of redemption of said defendants therein be forever barred and foreclosed.” That decree was affirmed in the Appellate Court, and a majority of the judges of that court having made the necessary certificate to enable her to do so, Mary Bozarth brings the case to this court on her appeal.
It will be perceived that Mary Bozarth claims to be the owner in fee of the mortgaged premises, by a title adverse to that of the mortgagor. She does not claim anything under the mortgage or under the title of the mortgagor, but independent of that title. The court, by rendering a final decree against her, barred all her rights in default of the payment of the mortgage indebtedness, assumed to pass on the validity of her title. This, it is thought, could not properly be done on a bill to foreclose a mortgage. Undoubtedly, the mortgagees were entitled to a foreclosure as against the mortgagor, who it is conceded was the owner of the premises at the time the mortgage was made; and if their title shall be suffered to become absolute under such foreclosure, the question whether the mortgage title will prevail over the title subsequently acquired by Mary Bozarth under the tax deed, can be best tried in a court of law. That is the usual forum in which to settle and determine adverse legal titles to real property. In Gage v. Perry, 93 Ill. 176, it was held ah adverse claim of title, in no way connected with the title of the mortgagor, was not a proper subject for consideration in a suit to foreclose the mortgage. The principle of the case cited would seem to be conclusive of the same question in the case now being considered. The questions made on the argument as to the validity of the title insisted upon by Mary Bozarth, and whether she could be permitted to acquire a title adverse to the mortgage title, were not fairly within the jurisdiction of the court to determine, and it was error to bar her rights under her alleged deed, whatever they may be, as was attempted to be done by the decree. She should have been left free to assert her title, whatever it may be, if the title of complainants under the mortgage should become absolute, and they should seek to obtain possession-of the premises in an action at law. , The court should give complainants no writ of assistance, but should leave the parties to test the strength of their respective titles in the law courts, where such matters are usually cognizable.
The judgment of the Appellate Court will be reversed, and the cause remanded, with directions to that court to reverse the decree of the circuit court and remand the cause, with directions to the circuit court to so modify its decree as to save the rights of Mary Bozarth under her alleged title to the mortgaged premises, whatever they may be, that she may assert the same in any court of law as a matter of. defence or attack, as she may be advised, and in all other respects to decree as in its former decree.
. Judgment reversed.
