231 Ill. 29 | Ill. | 1907
delivered the opinion of the court:
This appeal should have gone to the Appellate Court. No freehold is involved and there is no other ground for an appeal to this court. In an ordinary petition by an administrator to sell real estate no freehold is involved. (Frier v. Lowe, 207 Ill. 410; Fields v. Coker, 161 id. 186.) It is only in cases where the title is put in issue that a direct appeal lies to this court. (Lynn v. Lynn, 160 Ill. 307; Richie v. Cox, 188 id. 276; Roberson v. Tippie, 215 id. 119.) “A freehold is involved, within the sense and contemplation of the constitution and the statute, only in cases where either the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, or where the title is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue.” (Malaer v. Hudgens, 130 Ill. 225; VanTassell v. Wakefield, 214 id. 205.) Where the question is as to the existence of a lien on land no freehold is involved. Though the litigation may possibly result in the loss of a freehold, yet no freehold is involved if the defendant may arrest the proceeding, defeat the object of the suit and prevent a disturbance of his title by making payment, discharging a lien or doing some act to arrest the sale. (Ducker v. Wear & Boogher Dry Goods Co. 145 Ill. 653; Chicago, Burlington and Quincy Railroad Co. v. Watson, 105 id. 217.) Where there is no claim of an adverse title to be adjudicated, the only effect of a decree is to subject the land to sale for the payment of the debts of the estate. The payment of such debts would relieve the land from any effect of the decree, and in such case no freehold is involved. Thomas v. Waters, 213 Ill. 141; Richie v. Cox, 188 id. 276.
It is conceded in this case that Baumgarden has the title in fee, and that he derives his title remotely from Henry F. Wachsmuth, who is conceded to have died owning the land. There can be no adjudication as to Baumgarden’s title in this proceeding. It is in no way questioned. The only controversy is whether the land is subject to the lien of the unpaid debts of Henry F. WachsmutlTs estate.
The appeal will be transferred to the Appellate Court for the First District.
icAppeal transferred.
