Hockett v. Logan

• Decision Date: 20 February 1913
• Citation: 100 N.E. 978,257 Ill. 326
• Parties: HOCKETT et al. v. LOGAN et al.
• Court: Illinois Supreme Court

257 Ill. 326

100 N.E. 978

HOCKETT et al.

v.LOGAN et al.

Supreme Court of Illinois.

Feb. 20, 1913.

Appeal from Circuit Court, Jasper County; James C. McBride, Judge.

Action by Mary D. Hockett and others against W. S. Logan and others. From a judgment for plaintiffs, defendants appeal. Case transferred.A. E. Isley, of Springfield, and F. C. Van Sellar, of Paris, for appellants.

Frank T. O'Hair and Stewart W. Kincaid, both of Paris, for appellees.

PER CURIAM.

The appellee Mary D. Hockett filed a bill in the circuit court of Jasper county to set aside a certificate of sale made by the sheriff of that county as a cloud upon her title to the 80 acres of land described in the certificate. The holder of the certificate, who was the plaintiff in the execution under which the sale was made, filed a cross-bill to set aside a deed made to the appellee Mary D. Hockett by the other appellee. Mahlon Hockett, who was her husband, on the ground that the deed was made with intent to defraud creditors. Answers were filed to the bill and cross-bill, a hearing was had, and the court rendered a decree dismissing the cross-bill and setting aside the certificate in accordance with the prayer of the original bill. An appeal was taken to the Appellate Court for the Fourth District. That court ordered the cause transferred to this court, for the reason that ‘a freehold is involved in the determination of the cause.’

[1][2][3] A freehold is not involved in a proceeding to set aside a certificate of sale as a cloud upon title, for such certificate does not convey, or purport to convey, title. Hammalle v. Lebensberger, 256 Ill. 547, 100 N. E. 138. Nor is a freehold involved in a suit to set aside a conveyance because made in fraud of creditors. Conkey v. Knight, 104 Ill. 337;Sawyer v. Moyer, 105 Ill. 192;Chicago, Burlington & Quincy Railroad Co. v. Watson, 105 Ill. 217. It is true that the bill alleges that Mary D. Hockett is the owner in fee of the premises, and the answer denies it, but the cross-bill alleges that Mahlon Hockett was the owner of the premises in fee and conveyed them to Mary D. Hockett. Thus Mary D. Hockett's title is not in issue, but is admitted by all the parties in their pleadings. In a suit to remove a cloud from the title to real estate a freehold may or may not be involved. Where the complainant alleges a freehold in himself, and his title is denied in the answer and controverted on the hearing, a freehold is involved. Hibernian Banking...