Kirby v. Runals
| Decision Date | 18 January 1892 |
| Citation | 140 Ill. 289,29 N.E. 697 |
| Parties | Kirby v. Runals et al. |
| Court | Illinois Supreme Court |
37 Ill. App. 186, affirmed.
Appeal from appellate court, first district.
Bill by Alice M. Kriby against Eli F. Runnals, W. Beach Taylor, and Emanuel Sandheimer, to enjoin defendants from selling certain real estate under a decree of foreclosure. Defendants obtained a decree, which was affirmed by the appellant court. Complainant appeals. Affirmed.M. P. Brady, for appellant.
-A. S. Bradley, for appellee Taylor.
The other facts fully appear in the following statement by BAKER, J.:
In May, 1888, Alice M. Kirby, the appellant, filed her bill in the Cook circuit court to enjoin appellees from causing the sale under a decree of foreclosure rendered by said court on March 1, 1876, of certain real estate belonging to her. On the final hearing the temporary injuction was dissolved, and the bill dismissed for want of equity. That decree was affirmed in the appellate court. This appeal brings the record here. The record presents, in substance, this state of facts: In 1861, Hart L. Stewart was the owner in fee of the premises described in the bill. He conveyed to Isaac Simmons, who executed and delivered to Eli G. Runals two mortgages thereon, dated September 1, 1864. The mortgages secured two promissory notes of the same date, each payable to the oreder of Runals, three years after their date. On the 1st day of May, 1875, Runals filed a bill in the circuit court of Cook cournty to foreclose the mortgages. On the 1st day of March 1876, a decree was entered finding that the sum of $4,680 was due to Runals upon the mortgages; that Emanuel Sandheimer had a lien upon said sum for $4,592.28; and decreeing that the defendant, within 10 days from the entry of the decree, pay to the clerk of the court the said sum of $4,680, with interest thereon at the rate of 6 per cent. per annum from the date of the entry of the decree, with costs of suit; and that, in case the defendant should make default, the premises to be sold by one of the masters in chancery of the court; and that said master bring the moneys arising from such sale into court, together with his report of the sale, without delay; and that the said Emanuel Sandheimer was entitled to receive out of the said money to be paid to the clerk of the court, or, in default of such payment, out of the proceeds of such sale, the sum of $4,592.28; and that the said Runals was entitled to receive the balance of said sum of $4,680, interest and costs, that should remain. Before that decree was entered, John H. Roberts had been appointed receiver of Runals' estate by order of the superior court of Cook county, in a creditors' suit wherein one Harding was complainant and Runals was defendant. The receiver, hearing of the decree in Runals' favor, appeared in the foreclosure case, and upon his own motion this order was entered therein by the circuit court, on March 18, 1876: ‘It is ordered by the court that the receiver of said complainant, John H. Roberts, having appeared and moved to open this decree and vacate so much of the same as shall be necessary to protect his rights to the moneys declared to be due the said complainant, and payable in fact to one Emanuel Sandheimer, and a contest having arisen between said receiver and said Sandheimer as to the motion of the said Roberts and his claims to the said moneys and the fruits of said decree, and the court desiring to preserve the rights of said receiver and all of the parties in the premises, so that they may be further considered and decided hereafter, it is further ordered by the court that so much of said decree as provides for the payment of any part thereof to said Sandheimer or to said Runals, and the recitals therein contained relating to said claim of said Sandheimer, including those relating to said H. Lowy, be set aside and vacated, and that the determination of the proper party entitled to said moneys be reserved for the further order and decree of this court.’ The reference to Lowy was an error, as the decree mentioned him only as having made an affidavit in support of Sandheimer's claim. No further action was taken in the foreclosure suit, or under the decree therein, until April 21, 1880, when an order was entered by the circuit court dismissing the suit. The order of dismissal was never disturbed, nor was any order for reinstating the case ever entered. The suit in which Roberts was appointed receiver was dismissed in 1882. By quitclaim deed dated September 19, 1887, recorded October 12, 1887, Cecelia Reid, Anna M. McKenna, and Patrick F. McKenna, her husband, and Joseph J. Reed, conveyed the premises to appellant. The grantors in that deed were then the owners of the equity of redemption, all of them except Patrick McKenna having been defendants to the foreclosure suit, and the consideration for the deed was stated therein as $600. By warranty deed dated November 22, 1887, recorded the same day, Joseph J. Reed again conveyed the premises to appellant, the consideration stated therein being $7,000. In neither deed was either of the mortgages or the foreclosure proceeding referred to, but, at the time the conveyances were made to appellant, her attorney had notice thereof from an abstract of title which he examined, and the proof tended to show that at the time of such conveyance the premises were worth over $20,000. Appellant took actual possession of the premises, and has been in possession thereof ever since the deeds were made to her. All interest of Runals and Sandheimer in and to the decree of foreclosure became vested in W. Beach Taylor, one of the appellees herein, and that fact was so declared by order of the circuit court entered in the foreclosure case, March 24, 1888, and the master was thereby directed to proceed with the sale and pay the proceeds thereof to Taylor after deducting costs of court and expenses of sale. The sale was advertised by the master, but was prevented by the temporary injunction issued on the bill of appellant.
BAKER, J., ( after stating the facts.)
Four contentions are urged by appellant:
1. It is claimed that the foreclosure decree was not final, but interlocutory only, and therefore was vacated by the order of dismissal of April 21, 1880. The decree was, under our understanding of the law, a final decree. It was one from which either the complainant in the bili or the owner of the equity of redemption could have prosecuted an appeal; and one under which, after the expiration of the time limited therein, the master in chancery could have made a sale of the premises. The matters in litigation in the suit, as between Runals, the complainant therein, and the owners of the equity of redemption, were the existence and maturity of the debt, the amount due, the existence of the mortgage securing the debt, the right to foreclose the same, and the right of the complainant to have a decree for the sale of the mortgaged premises to pay the debt, interests, and costs. These litigations were all determined by the court and settled by the decree. The master was ordered to make sale of the real estate, and bring the moneys arising from such sale into court. The only thing which remained to be done in which the mortgagors, or those succeeding to their rights, had any interest or concern, was the mere enforcement or carrying into execution of the decree. It was wholly immaterial to them how the proceeds of sale were distributed. A decree foreclosing a mortgage and decreeing a sale of the mortgaged premises is a final decree, and this even though the master is ordered to make a report of the sale. Here a controversy arose between Runals, Sandheimer, and Roberts, to which the holders of the equity of redemption were not parties, and which did not affect them. Sandheimer claimed, as pledgee of the note secured by the mortgage, that he was entitled to receive a portion of the proceeds of sale that this court had decreed should be brought into court; and Roberts contended that, as receiver, appointed in a creditors' suit pending against Runals, he was entitled to have all or a portion of all the moneys that should be realized, and that the court had already ordered to be brought into court, paid over to him. The court thereupon left the decree for foreclosure and sale still standing and in full...
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