Opinion
No. 18715. Cause transferred.
Opinion filed April 21, 1928.
APPEAL from the Circuit Court of Peoria county; the Hon. JOSEPH E. DAILY, Judge, presiding.
MANSFIELD COWAN, and GEORGE J. JOCHEM, for appellants.
LEON E. SUTHERLAND, and TODD, MORGAN, PENDARVIS ARBER, for appellees.
Appellants, the Farmers State Bank of Princeville and A.B. DeBord, brought this suit in the circuit court of Peoria county to foreclose a trust deed executed by appellee Milton Fast on December 12, 1924, to DeBord, trustee, to secure the payment of an indebtedness in the sum of $14,975.57, evidenced by eight promissory notes, payable five years after date and bearing interest at the rate of seven per cent. The bill made appellee Allen C. Fast a party thereto and alleged that he claimed some right, title or interest in the premises as purchaser, mortgagee, judgment creditor or otherwise, and alleged further that if he had any such interest it was secondary and subsequent to that of DeBord acquired under the trust deed. Appellees filed a joint and several answer, in which they alleged that in the year 1907 Milton Fast made an oral agreement with Allen C. Fast with reference to a part of the premises described in the trust deed, and that this oral agreement was reduced to writing March 14, 1921, and signed by them; that pursuant to the oral agreement, in the year 1917 Allen took possession of the premises and built thereon a dwelling house at a cost of approximately $8000; that after the completion of the dwelling Allen moved into it and has since continued in possession of the premises, claiming the right of possession and the right to continue to occupy the same under the terms of the oral and written agreement; that appellant the Farmers State Bank of Princeville had notice of the possession of Allen and of his claim to the premises and of the terms of the oral and written agreement long prior to the execution of the notes and the trust deed described in the bill of complaint, and that the rights of Allen are not secondary and subsequent to the lien of the trust deed. Attached to the answer and incorporated therein was the written agreement made between Milton and Allen. Without setting out this agreement in full, it is sufficient to state that it was covenanted and agreed between the parties that Milton is the owner in fee simple of the land described in the trust deed and Allen the owner of the dwelling house now located on the land, and that Allen has full right and lawful authority to have the dwelling house remain on the lot during the life of the parties thereto, and in the event of the death of either of the parties thereto certain provisions are made for the appraisement of the house and lot, a sale of the premises and a division of the proceeds.
In the trial court two issues were presented: First, that the bill of complaint was prematurely filed, on the ground that there had been no default in the payment of interest; and second, whether the rights of Allen acquired by the agreement and the erection of the dwelling house and the possession of the premises were subsequent to the lien of the trust deed of appellants. The trial court dismissed the bill for want of equity and an appeal was prayed and perfected directly to this court. What question is presented which gives this court jurisdiction of a direct appeal? Obviously, the first question does not. Without determining the nature of the rights of appellee Allen C. Fast under the agreement, it is apparent that the only issue involved with reference to such rights is whether or not they are subject to the lien of appellants' trust deed. There are no pleadings in this case which involve a question of title. It has been held repeatedly by this court that a freehold is not involved in a suit to foreclose a mortgage. ( Becker v. Fink, 273 Ill. 560; Williams v. Spitzer, 203 id. 505.) The appeal should not have been taken directly to this court, and the cause is therefore transferred to the Appellate Court for the Second District.
Cause transferred.