Holmes v. First Union Trust & Sav. Bank

• Citation: 198 N.E. 671,362 Ill. 44
• Decision Date: 05 December 1935
• Docket Number: No. 23136.,23136.
• Court: Supreme Court of Illinois
• Parties: HOLMES v. FIRST UNION TRUST & SAVINGS BANK.

362 Ill. 44

198 N.E. 671

HOLMES

v.FIRST UNION TRUST & SAVINGS BANK.

No. 23136.

Supreme Court of Illinois.

Oct. 24, 1935.

Rehearing Denied Dec. 5, 1935.

Action by Robert H. Holmes, trustee, against the First Union Trust & Savings Bank, wherein the First National Bank of Chicago, trustee, filed a cross-complaint against Robert H. Holmes, trustee, and another. From an adverse decree, the defendants to the cross-complaint appeal.

Affirmed.

Appeal from Circuit Court, Du Page County; Max F. Allaben, judge.

Robert H. Holmes, of Chicago, for appellants.

George Gillette, Cassius A. Scranton, and Carl F. Faust, all of Chicago, for appellee.

FARTHING, Justice.

This is an appeal from a decree of the circuit court of Du Page county dismissing appellant Holmes' complaint for want of equity and granting the prayer of appellee's cross-complaint. A temporary injunction was made permanent, and the appellants, Robert H. Holmes and Mary Elizabeth Shipley, were restrained from interfering with the possession of the First National Bank of Chicago, as trustee under the last will of George Ebeling, deceased.

Robert H. Holmes, trustee, filed his complaint against the First Union Trust & Savings Bank, a corporation, to remove two deeds as clouds upon his title to the house and lot in question. The first deed purported to have been made by Holmes, trustee, to Alicin Cossey, also known as Alicia Cossey, on May 10, 1933, and to have been acknowledged before Nelson Foley, a notary public, on May 15, 1933. It was recorded May 22, 1933. The other deed was made by Alicin Cossey to the First Union Trust & Savings Bank, a corporation, as trustee. It was dated and acknowledged on May 10, 1933, and was recorded May 23, 1933. Both conveyed the real estate in question.

As indicated above, suit was filed against the First Union Trust & Savings Bank as trustee. It was stipulated that this bank was incorporated, and on May 10, 1933, had authority under the laws of Illinois to do a trust business. It was further stipulated that it merged with the First National Bank of Chicago, a corporation organized under the laws of the United States, and that the latter bank was authorized by the Comptroller of the Currencyto carry on a trust business, and that it had similar authority from the Auditor of Public Accounts of Illinois. This latter bank filed its answer as trustee under the will of George Ebeling, deceased. It alleged that the deed from Alicin Cossey to the First Union Trust & Savings Bank as trustee, etc., was made for a good and valuable consideration paid in good faith in reliance upon the public records of Du Page county, and that it had no knowledge whether the deed of May 10, 1933, from Robert H. Holmes, as trustee, to Alicin Cossey, was made without ‘notice, consideration, knowledge, authority or connivance’ upon the part of Holmes, and that it neither admitted nor denied the same, but denied that the deeds from Holmes to Cossey and from her to this defendant were fraudulent and denied that Holmes was entitled to any relief. A replication was filed to this answer.

The First National Bank of Chicago, as trustee, also filed its sworn cross-complaint against the appellants. It alleged that George Ebeling at his death was owner of a $5,000 mortgage covering the real estate described in the complaint and that the mortgage indebtedness was due on January 3, 1932; that upon his death title to the mortgage became vested in the executors under his will, and that upon the discharge of said executors the note and mortgage were turned over to the Union Trust Company as trustee under his will; and that by successive consolidations the ownership of the note and mortgage became vested in the First National Bank of Chicago as such trustee. The cross-complaint then described the mortgaged premises, and it was alleged that they were of a less value than $6,000 and were scant security for the mortgage debt. It alleged that on May 10, 1933, default having been made in payment of the principal debt of $5,000 and interest due July 3, 1931, and thereafter also in the payment of general taxes and special assessments on the property, an agreement was entered into with Alicin Cossey for cancellation of the mortgage indebtedness and payment of $275 to her for a deed conveying title to the premises to appellee, cross-plaintiff; that thereafter the mortgage debt was canceled, the $275 was paid, and the deed from Alicin Cossey was executed and filed for record; that later cross-plaintiff leased the premises to one A. N. Breland at $35 a month from August 13, 1934, to September 30, 1935; that after filing his complaint, appellant Holmes, as trustee, made a deed purporting to convey the property in question to Mary E. Shipley. It alleged that on September 21, 1934, she filed in a justice court a forcible detainer action against A. N. Breland, the tenant. This was also after Holmes' suit was filed. The prayer of the cross-complaint was that title be quieted in cross-plaintiff, and in the event the court should find that it was not entitled to this relief, that the mortgage for $5,000 be foreclosed as a first and prior lien upon the land in question. On December 24, 1934, Holmes as trustee and Mary E. Shipley filed answers denying that appellee was entitled to the relief prayed in its cross-complaint.

It was stipulated that George C. McDonald and Grace P. McDonald executed the $5,000 note described in the trust deed made by them conveying the land in question to the Union Trust Company as trustee,...