Hibernian Banking Ass'n v. Commercial Nat. Bank of Chicago

Decision Date11 October 1895
Citation157 Ill. 576,41 N.E. 918
PartiesHIBERNIAN BANKING ASS'N v. COMMERCIAL NAT. BANK OF CHICAGO.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from appellate court, First district.

Bill by the Commercial National Bank of Chicago against the Hibernian Banking Association. Complainant obtained a decree. Defendant appealed to the appellate court, which dismissed the appeal for want of jurisdiction. 54 Ill. App. 277. Defendant again appeals. Affirmed.

Wilson, Moore & McIlvaine, for appellant.

J. A. Sleeper, for appellee.

CARTER, J.

This is an appeal from the judgment of the appellate court for the First district dismissing an appeal from a decree rendered by the circuit court of Cook county on a bill to remove cloud from the title to real estate. The appeal was dismissed by the appellate court on the ground that a freehold was involved, and that the appeal should have been taken directly to this court. The appellant also sued out a writ of error from this court to the circuit court, and both proceedings are now pending here. The facts are fully stated in the case pending on the writ of error between the same parties, and will not be repeated. 41 N. E. 919. This court has held that in a suit to remove a cloud from the title to real estate a freehold may or may not be involved. In such cases the real contention usually concerns that which is said to create the cloud, and not the title of the party complaining, unless it is put on issue by the pleadings. Hutchinson v. Howe, 100 Ill. 11;Miller v. Pence, 115 Ill. 576, 4 N. E. 496. Where the necessary result of the judgment or the decree is that one party gains and the other loses a freehold estate, and also in cases where the title to a freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining and the other losing the estate, we have held that a freehold is involved. Ryan v. Sanford, 133 Ill. 296, 24 N. E. 428; Railroad Co. v. Watson, 105 Ill. 217.In the case at bar no freehold is involved in the controversy as to the nature of the title of appellant, for it is alleged in the bill and admitted in the answer that the warranty deed to Clarke, its president, and which is alleged to constitute the cloud sought to be removed, was a mere mortgage to secure the payment of a debt to appellant; and the only question respecting the lien was whether or not it was still in existence at the time of filing the bill. But the complainant alleged in its bill that it was the owner in fee simple of the property in question, and asked the court to so decree. The defendant denied that the complainant was the owner of the title, and thus complainant's title was put directly in issue, and this was one of the controverted questions in the trial of the cause. Whil...

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15 cases
  • Macdonald v. Dexter
    • United States
    • Illinois Supreme Court
    • June 18, 1908
    ...issue, a freehold is necessarily involved. Hayes v. O'Brien, 149 Ill. 403, 37 N. E. 73,23 L. R. A. 555;Hibernian Banking Ass'n v. Commercial Nat. Bank, 157 Ill. 576, 41 N. E. 918;Sanford v. Kane, 127 Ill. 591, 20 N. E. 810. What we have already said we think fully disposes of this question,......
  • Glos v. Goodrich
    • United States
    • Illinois Supreme Court
    • October 15, 1898
    ...equitable title will support the allegation of ownership of the title. Hemstreet v. Burdick, 90 Ill. 444;Hibernian Banking Ass'n v. Commercial Nat. Bank, 157 Ill. 576, 41 N. E. 918. The averment in this bill shows an actual sale by the appellee, and delivery of possession to her grantee, wh......
  • Hibernian Banking Ass'n v. Commercial Nat. Bank of Chicago
    • United States
    • Illinois Supreme Court
    • October 11, 1895
    ...for want of jurisdiction on the ground that a freehold was involved.CARTER, J. (after stating the facts). In Hibernian Banking Ass'n v. Commercial Nat. Bank, 41 N. E. 918, on appeal from the appellate court, we held that a freehold was involved in this controversy, and affirmed the judgment......
  • Jones v. Foster
    • United States
    • Illinois Supreme Court
    • October 24, 1898
    ...a mortgage; the mortgage being a mere incident of the debt, and being barred when the debt is barred. Hibernian Banking Ass'n v. Commercial Nat. Bank, 157 Ill. 524,41 N. E. 918. It is therefore evident that the right to foreclose the incumbrance resting upon those lots has not been barred a......
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