Lake v. Tomes

• Decision Date: 18 January 1950
• Docket Number: No. 31126,31126
• Citation: 90 N.E.2d 774,405 Ill. 295
• Court: Illinois Supreme Court
• Parties: LAKE v. TOMES et al.

Page 774

90 N.E.2d 774

405 Ill. 295

LAKE v. TOMES et al.

No. 31126.

Supreme Court of Illinois.

Jan. 18, 1950.

Rehearing Denied March 20, 1950.

Joseph B. Gilbert, of Chicago, for appellant.

Thomas J. Mullen, of Chicago (Albert E. Lake, pro se, of counsel), for appellee.

SIMPSON, Justice.

From a decree of the superior court of Cook County dismissing his counterclaim and ordering a sale of the premises here involved to satisfy the indebtedness secured by a trust deed thereon, which favors appellee, Albert E. Lake, the appellant, Peter A. Grosso, perfected his appeal to this court, a freehold being involved.

April 17, 1924, George Tomes was the owner in fee of a lot situated in the city of Chicago upon which is an eight-room brick dwelling house alleged to be worth about $10,000. On that date George Tomes and his wife, Annie Tomes, executed a trust deed conveying said premises to the Chicago Title and Trust Company, trustee, to secure the payment of a promissory note in the principal sum of $9000 due five years after date. Appellee acquired the note in due course and is the holder of the indebtedness secured by the trust deed on the premises. Because of an alleged default in the payment of principal and interest due on April 1, 1940, appellee commenced a suit to foreclose the trust deed. Appellant filed an answer and counterclaim in which he claimed title to the premises based on a deed issued by a master in chancery pursuant to a decree in a prior suit to foreclose a mechanic's lien.

August 26, 1930, Edward W. Chambers and Mary C. Chambers, who were in possession of the premises under a contract to purchase, entered into a written contract with the Sundeam Heating Company, Inc., for the installation of a furnace in the dwelling house on the premises, at the cost of approximately $412. Upon default of payments under the contract, to the extent of $292, the Sunbeam Heating Company, Inc., instituted a suit to foreclose a mechanic's lien. The Chicago Title and Trust Company, trustee, George Tomes and Annie Tomes, were made parties defendant. The holder of the indebtedness secured by the trust deed, appellee here, was made a party defendant under the designation of 'Unknown Owners.' The circuit court ordered the sale of the premises to satisfy the amount due under the contract and the premises were sold to Sunbeam Heating Company at the master's sale. After the period of redemption had expired, the master in chancery executed and delivered a deed to the American Radiator Company, assignee of the purchaser at the mechanic's lien foreclosure sale. The decree of foreclosure of the mechanic's lien was filed August 12, 1937; the master's deed was issued January 12, 1939, and on January 29, 1940, the premises were deeded to appellant, Peter A. Grosso, in consideration of the sum of $300.

September 30, 1938, Carl Kahler leased the premises from George Tomes and Annie Tomes, for a term of one year, with an option to renew for two years, on a monthly rental basis. On April 1, 1940, appellant, Peter A. Grosso, served the tenant, Carl Kahler, with a demand for possession of the premises. On April 27, 1940, George and Annie Tomes, and appellee, Arthur E. Lake, filed a petition in the nature of a bill of review to set aside the decree of foreclosure in the mechanic's lien suit on the ground that the petitioners had no notice of the suit to foreclose the mechanic's lien. George and Annie Tomes averred that they had never been served with summons in the cause, and did not learn about the suit until after service of demand for possession on their tenant. The return of the sheriff was to the effect that George Tomes and Annie Tomes had been served with summons by leaving a copy of the same with a member of their family at their usual place of abode.

The petition in the nature of a bill of review was the proper procedure to determine whether the circuit court had acquired jurisdiction of the defendants in the mechanic's lien suit. Koberlein v. First Nat. Bank, 376 Ill. 450, 34 N.E.2d 388; Elieff v. Lincoln National Life Ins. Co., 369 Ill. 408, 17 N.E.2d 47. Appellant's motion to strike the petition in the nature of a bill of review was allowed by the circuit court. On appeal the Appellate Court reversed and remanded the cause with directions that the circuit court inquire into the matters alleged in the petition. Appeal of Lake, 312 Ill.App. 382, 38 N.E.2d 544. After a hearing the circuit court found that George Tomes and Annie Tomes had not been served with summons and the decree was vacated and set aside and the summons quashed. Thereafter, appellant filed a petition to vacate the order of the circuit court setting aside the decree of foreclosure of the mechanic's lien and quashing the summons. A hearing was had on this petition and the order vacating the decree and quashing the summons was set aside and said decree of foreclosure reinstated. Appellee, and George and Annie Tomes, appealed from this order. The Appellate Court reversed and remanded the cause to the circuit court with directions that the summons be quashed, the decree vacated, and a hearing be had on the merits of the cause. 321 Ill.App. 629, 53 N.E.2d 294. The record does not disclose what further proceedings, if any, have been had in the suit to foreclose the mechanic's lien.

Appellant contends that he purchased the premises in question in good faith more than two years after the sale under the decree of foreclosure in the mechanic's lien suit; that he relied upon the record containing recitals of jurisdictional facts and upon the sheriff's return showing service of summons upon defendants in the suit; and that his title was not affected by the later order of the Appellate Court setting aside the foreclosure...