Burroughs v. Kotz
80 N.E. 728
Ill.
1907
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

Under the pleadings the primary claim of appellee is that the transaction of March 21, 1904, should be decreed to be a mortgage and that appellee should have a right to redeem therefrom. As the pleadings were finally amended all other claims are incidental to this primary one. The decree of the trial court found that the equities were with the appellee and that he was entitled to redeem the premises in question by paying to appellant the sum of $16,127.91, with interest from the date of the decree, within ninety days from said date; that if he failed to so redeem, the bill of complaint should stand dismissed at his costs, and he, and all other persons claiming through him, should be forever barred from asserting any title or interest in the premises; that if he did so redeem, Burroughs (or, upon his failure or refusal so to do, the master in chancery,) should execute and deliver to the appellee a deed to the premises.

We are met at the threshold of this cause with the question as to whether a freehold is involved herein. It has been held by this court that a freehold is not involved “where the litigation may in certain contingencies result in the loss of a freehold but which will not necessarily do so.” (Chicago, Burlington and Quincy Railroad Co. v. Watson, 105 Ill. 217.) This court held in Hollingszvorth v. Koon, 113 Ill. 443, and in Lynch v. Jackson, 123 id. 360, that the question of the right to redeem under a conveyance claimed to be a mortgage did not involve a freehold, within the meaning of that word as used in the statute. The fact that the decree orders appellant, on certain conditions, to convey to appellee does not determine that a freehold is involved. Until appellee had redeemed he would not be entitled, even in equity, to a deed. (Kirchoff v. Union Mutual Life Ins. Co. 128 Ill. 199.J Appellee may or may not avail himself of the right of redemption asked for in the bill and given him by the decree. It does not necessarily follow from the pleadings that appellant will necessarily gain or appellee lose such a freehold. Such result depends upon subsequent acts, which appellee may or may not perform. (Ryan v. Sanford, 133 Ill. 291.) There is no dispute in this record over the title previous to the granting of the certificate of sale. Whatever question of title arises in this case is only incidental or collateral to the right to redeem. To justify a review by this court a freehold must be directly involved, and the necessary result of that judgment or decree must be that one party gains and the other party loses a freehold estate, or that the title must be so put in issue by the pleadings that the decision of the case necessarily involves the decision of such issue. (VanMeter v. Thomas, 153 Ill. 65; Beach v. Peabody, 188 id. 75.) Neither can it be contended that a freehold is involved because the court by its decree practically authorizes the setting aside of the master’s deed to appellant provided Kotz redeems in accordance with the provisions of the decree. The original bill in this case was filed before the master’s deed was executed, and the setting aside of the deed is a mere incident to the right of redemption and has no bearing on the real controversy between the parties. (Eddleman v. Fasig, 218 Ill. 340; Adamski v. Wieczorek, 181 id. 361.) The allegations in the bill as to a trust, an accounting and specific performance were all collateral and incidental to the primary or chief allegation that the master’s certificate, as affected by the transaction of March 21, 1904, should be decreed a mortgage and appellee have the right of redemption therefrom. A freehold must be directly involved, and not merely collaterally or incidentally, to give jurisdiction. Matthiessen & Hegeler Zinc Co. v. City of LaSalle, 117 Ill. 411; Mayor of Roodhouse v. Briggs, 194 id. 435; Chicago Land Co. v. Peck, 112 id. 408; Kirchoff v. Union Mutual Life Ins. Co. supra; Adkins v. Beane, 135 Ill. 530; Goodkind v. Bartlett, 136 id 18; Nevitt v. Woodburn, 175 id. 376; Schoendubee v. Investment Union, 183 id. 139; Adamski v. Wieczorek, supra.

While the parties have not raised this question of jurisdiction, we have held that “it is our duty to decline to proceed in cases where jurisdiction to determine them is wanting.” (Brockway v. Kizer, 215 Ill. 188.) The appeal should have been to the Appellate Court. Under the authorities this court has no jurisdiction to entertain it. It must therefore be dismissed. Leave is given to withdraw the record, abstracts and briefs.

Appeal dismissed.