Becker v. Fink

• Decision Date: 22 June 1916
• Docket Number: No. 10718.,10718.
• Citation: 113 N.E. 49,273 Ill. 560
• Parties: BECKER et al. v. FINK et al.
• Court: Illinois Supreme Court

273 Ill. 560

113 N.E. 49

BECKER et al.

v.FINK et al.

No. 10718.

Supreme Court of Illinois.

June 22, 1916.

Appeal from Circuit Court, St. Clair County; George A. Crow, Judge.

Suit by Gustave A. Becker, trustee, and others, against Henry J. Fink and others. From a decree for complainants, respondent the East St. Louis Lumber Company appeals. Cause transferred.

Keefe & Sullivan, of East St. Louis (C. P. Wise, of East St. Louis, of counsel), for appellant.

Fred B. Merrills and Fred E. Merrills, both of Belleville, for appellees.

CARTER, J.

On May 10, 1908, Willis F. Carl, being the owner of two lots in a subdivision in East St. Louis, in St. Clair county, Ill., made a contract with the East St. Louis Lumber Company whereby said company agreed to furnish lumber and mill materials to be used in the construction of three buildings on said lots. May 16, 1908, Carl made to Henry J. Fink, as trustee, three mortgages, each on a separate tract of land, and each to secure notes aggregating $2,500, maturing three years after date. The East St. Louis Lumber Company furnished the lumber and millwork according to its contract, to the value of $1,331.84, which were used in the erection of the three buildings on said lots. On December 31, 1909, the lumber company filed a bill for mechanic's lien against Carl, not making Fink, the trustee, or any of the holders of the notes, defendants to the suit. A decree was rendered in favor of the company for $1,441.53, and the property was ordered to be sold by the master in chancery if the amount due said lumber company, with costs of suit, was not paid by June 12, 1910. Payment not being made, the master in chancery on July 7, 1910, sold the property to the East St. Louis Lumber Company. The property not being redeemed, on October 24, 1911, the master made a deed of the property to said company. September 4, 1913, the trustee under the three mortgages, and the owners of some of the notes filed this bill to foreclose the mortgages. Intervening petitions were filed by a number of other note holders. After the pleadings were settled the cause was referred to a master in chancery to take evidence. He reported that the trustee and the note holders had a first lien on said lots, and the East St. Louis Lumber Company had a second lien under the master's deed. On a hearing in the trial court exceptions to the master's report were overruled, and a decree was entered in accordance with the findings of the master that the trustee and note holders under the mortgages had a first lien on the property, and that the lien of the East St. Louis Lumber Company was subsequent and inferior to the mortgage liens of the note holders, and that, if Carl did not pay the sums found to be due under said notes and mortgages within a certain stated date, the property be advertised and sold according to law. From that decree this appeal was prayed by the East St. Louis Lumber Company. The cause has been brought directly to this court, apparently on the ground that a freehold is involved.

[2][3] It has been repeatedly decided by this court that a freehold is not involved in a suit to foreclose a mortgage. Carbine v. Fox, 98 Ill. 146;McIntyre v. Yates, 100 Ill. 475;VanMeter v. Thomas, 153 Ill. 65, 38 N. E. 1036;Reagan v. Hooley, 247 Ill. 430, 93 N. E. 380, and cases cited. A freehold is involved, within the sense and contemplation of the Constitution and statutes, only in cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold, 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, 22 N. E. 855;Van Tassel v. Wakefield, 214 Ill. 205, 73 N. E. 340. Where the litigation in a certain contingency may result in the loss of a freehold, but does not necessarily do so, a freehold is not involved. Chicago, Burlington & Quincy Railroad Co. v. Watson, 105 Ill. 217. Where the question of a freehold depends upon the existence...