103 Ill. 175 | Ill. | 1882
delivered the opinion of the Court:
This was a proceeding in equity, in the circuit court of Cook county, instituted by the plaintiff in error, against the defendant in error and others, for the purpose of foreclosing a deed of trust executed by Joshua Severns to Thomas D. Snyder, to secure a note given by Severns to plaintiff in error for $15,000, and also for the purpose of removing an alleged cloud upon the title of a part of the mortgaged premises. Gage, though duly served with process, made no defence, and a decree pro confesso was rendered against him, setting aside certain tax deeds of his as a cloud upon the title of complainant. There was also a decree of foreclosure as to the other defendants, as prayed for in the bill. This decree as to Gage, was reversed on error by the Appellate Court for the First District, the other parties acquiescing in the decree of the circuit court. Upon removing the record to this court for review, the defendant in error entered a formal motion to dismiss the writ of error, on the ground “there is no law authorizing the writ in a case like this, which was reserved for the final consideration of the cause.
For the purposes of this motion, and "indeed for all other purposes, the record before us, so far as it relates to the foreclosure of the deed of trust and to the parties to the original proceeding who have ceased to have any connection with it, must be kept out of view, and the case must be regarded precisely as if plaintiff in error had in the first instance filed a bill against Gage alone, for the purpose of having his tax deeds set aside as a cloud upon complainant’s title, and Gage had suffered a decree by default to go against him in the manner he did.
The rule seems to be established by this court that a freehold will be regarded as involved in all cases where real estate is claimed under a deed regular on its face, and purporting to pass the title, which is sought to be set aside by an adverse claimant as a cloud upon the latter’s title. Hutchinson v. Howe, 100 Ill. 20; Gage v. Scales, id. 218. While the writer of this opinion has never believed, and does not now believe, the rule in question is warranted by a fair construction of the statute, yet as ,a majority of the court hold the contrary view, as shown in the cases cited, he submits to it purely on the ground of judicial precedent.
Applying, then, the rule to the case before us, it follows that a freehold is involved, and the motion to dismiss the writ of error must be overruled.
The 88th section of the Practice act of 1877 provided that appeals from and writs of error to the circuit courts, etc., in all criminal cases and cases in which a franchise, or freehold, or the validity of a statute was involved, except in chancery cases, should be taken directly to the Supreme Court, provided the party appealing or prosecuting the writ of error should elect to do so. Under that act it was held that chancery causes, although involving a freehold, franchise, or the validity of a statute, could only be brought to ,this court through the Appellate Court. The 88th section, however, was amended, in 1879, by dropping out the exception relating to chancery cases, thus putting all cases, whether at law or in equity, upon the same footing in this respect.
Since the amendatory act of 1879, all cases involving a franchise, freehold, etc., without regard to whether they are chancery or law cases, are required to come directly to this court. It therefore follows, the writ of error from the Appellate to the circuit court was improperly sued out in this case, and that that court failed to acquire jurisdiction to review the decree of the circuit court.
The judgment of the Appellate Court must therefore be reversed, and the cause remanded, with direction to that court to dismiss the writ of error.
Under the circumstances of this case we deem it proper to state there seems to be a misapprehension of the true scope and effect of the decision in the case of Gage v. Perry, 93 Ill. 176. What is there said as to the right of a court of equity, upon a bill to foreclose a mortgage, to consider and pass upon an independent title, unconnected with that under which the mortgagee claims, and which is alleged to be a cloud upon the mortgagee’s title, must be limited to the facts of that case. There the owner of the tax title appeared, and by his answer insisted that he did not claim title under the mortgagor, and that his rights were not subject to that of the mortgagee, and this answer was sustained by the proofs. In the present case no such defence is set up, by answer or otherwise, and the allegations of the bill are admitted by the default to be true.
But suppose the bill showed upon its face that the tax deeds in this case were an independent outstanding title, and that as to them the complainant had a complete remedy at .law, it does not follow the decree should be reversed. It would simply show that there were two good defences to the bill, if insisted on at the proper time and in the legal mode, namely, multifariousness, and that the complainant had a complete remedy at law, yet nothing is better settled than that neither of these defences can be availed of in the first instance, as is sought to be done here, in a court of review. 1 Daniell’s Ch. Prac. 346, note 3; Labadie v. Hewitt, 85 Ill. 341; Henderson v. Cummings, 44 id. 325; Gilmore v. Sapp, 101 id. 297; Stout v. Cook, 41 Ill. 447; Hickey v. Forristal, 49 id. 255; Magee v. Magee, 51 id. 500; Dodge v. Wright, 48 id. 382; Knox County v. Davis, 63 id. 405.
It was not intended by what was said in Gage v. Perry, to at all qualify or infringe upon the well recognized principles of equity law.
Judgment reversed.
