Kagy v. Luke
| Decision Date | 17 October 1934 |
| Docket Number | No. 22410.,22410. |
| Citation | 357 Ill. 512,192 N.E. 559 |
| Parties | KAGY v. LUKE et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Bill by Marcus O. Kagy, succeeded by Amos H. Kagy, his executor, on his death, against Robert Luke and wife and Samuel A. Sevin and wife, wherein the North Shore Lumber & Supply Company filed an intervening petition. From a decree overruling exceptions to and approving the master's report in favor of complainant, Samuel A. Sevin and wife appeal, and intervener files a cross-appeal.
Cause transferred to Appellate Court.
Appeal from Circuit Court, Lake County; Ralph J. Dady, Judge.
Louis Sevin, of Chicago, for appellants Samuel A. Sevin et al.
Shulman, Shulman & Abrams, of Chicago (Meyer Abrams, of Chicago, of counsel), for cross-appellant North Shore Lumber & Supply Co.
Ernest A. Eklund and Campbell, Clithero & Fischer, all of Chicago (Carlton L. Fischer, Frederick J. Bertram, and John N. Thornburn, all of Chicago, of counsel), for appellee.
This case is before us on appeal from the circuit court of Lake county. Marcus O. Kagy, since deceased, filed a bill in the circuit court of Lake county to foreclose a first mortgage trust deed and notes owned by him in the principal sum of $8,500, dated May 10, 1928, and executed by Robert Luke and Miriam Luke, his wife. The real estate is loeated in Waukegan. Luke was a building contractor. He had dealt with the crosscomplainant, the North Shore Lumber & Supply Company, cross-appellant herein. In the transactions shown, Luke obtained loans as mortgagor, and the cross-appellant supplied him his materials. The loans on the buildingswere negotiated by the appellant Samuel A. Sevin and one Harold Shlensky. The latter paid the money obtained on the loans to Sevin or the cross-appellant, and Luke obtained his money from them. Sevin was an officer and director of the cross-appellant, and was active in its management. Luke bought the lot in question in March, 1928. He made application for an $8,500 first mortgage loan and a $3,000 second mortgage loan on the property through Sevin for the purpose of building a two-family apartment. This application was made to the firm of M. Shlensky & Sons. On May 10, 1928, the trust deed and notes for $8,500 were executed and delivered. They were later sold by Shlensky & Sons to the Fidelity Trust & Savings Bank, from which Marcus O. Kagy purchased them. Interest was paid on the mortgage indebtedness of $8,500 until May 10, 1930. The application for the second mortgage loan of $3,000 was not granted. Shlensky & Sons paid $5,000 to Sevin out of the proceeds of the sale of the loan, by checks later indorsed by both Sevin and the cross-appellant. Luke began building operations, but about November, 1928, ceased work. He and his wife removed to Wisconsin, and November 17, 1929, they executed a deed to the premises. The record shows this deed was made to Samuel A. and Harriet L. Sevin, his wife. The bill was filed because of alleged defaults in payment of interest and of the 1928 and 1929 taxes on the mortgaged premises. The North Shore Lumber & Supply Company filed its intervening petition by which it set up a claim to a mechanic's lien on the mortgaged premises in the amount of $10,000. After this, the appellee amended his bill of complaint and alleged that Sevin and wife received this conveyance for the benefit of, and held the title as trustees for, the lumber and supply company. The amendment also set out the filing of a claim for lien by the cross-appellant on May 27, 1931. Sevin and his wife thereupon amended their answer to the bill and denied that they were trustees for the cross-appellant. The findings of the master were in favor of the appellee. Objections were overruled by him and stood as exceptions to his report. The decree overruled these exceptions, and the master's report was approved.
[1] The appellee contends that this court does not have jurisdiction of this appeal because a freehold is not involved. The appellant and the lumber company rely upon Sanford v. Kane, 127 Ill. 591, 20 N. E. 810,Lundquist v. Iverson, 333 Ill. 523, 165 N. E. 135, and Winkelmann v. Winkelmann, 345 Ill. 566, 178 N. E. 118. The Sanford Case involved a plea of liberum tenementum as a defense to an action of trespass. The Lundquist Case was a suit to remove a cloud from the title of the complainant. The Winkelmann Case involved specific performance of a contract for adoption and a prayer that the complainant be decreed to be entitled to certain real estate. These cases correctly held a freehold was involved. But we have held that neither a mortgage nor a mechanic's lien foreclosure...
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