Lill v. Pace

• Decision Date: 23 April 1926
• Docket Number: No. 17304.,17304.
• Citation: 320 Ill. 522,151 N.E. 517
• Parties: LILL v. PACE et al.
• Court: Illinois Supreme Court

320 Ill. 522

151 N.E. 517

LILL

v.PACE et al.

No. 17304.

Supreme Court of Illinois.

April 23, 1926.

Suit by George Lill against William S. Pace and others, in which defendant Sanfrid Harnstrom filed a cross-bill. From a decree for plaintiff, and dismissing the cross-bill, cross-complainant appeals.

Cause transferred to Appellate Court.

Appeal from Superior Court, Cook County; Denis E. Sullivan, judge.

Edwin L. Waugh and Paul W. Schroeder, both of Chicago, for appellant.

Charles E. Heckler, of Chicago, for appellee.

Frederick Kull, of Chicago, for Charlotte L. and William S. Pace.

DUNCAN, J.

On April 21, 1923, George Lill filed a bill to foreclose a second mortgage of $26,000 and interest, and a third mortgage for $12,435 and interest, upon a 27-apartment building located at the southeast, corner of Sheridan road and Foster avenue, in Chicago. The defendants to the bill were William S. and Charlotte L. Pace, makers of the incumbrances; William E. Cloyes, as trustee in the second mortgage; Homer C. Dawson, as trustee in the third mortgage; the Chicago Title & Trust Company, as trustee in the first mortgage bond issue made in 1921 for $200,000; Lackner, Butz & Co.; Max Grossman as trustee under a $60,000 trust deed filed in 1923; and Sanfrid Harnstrom, appellant. The bill alleged that the Paces, being indebted to Harnstrom in the sum of $25,000, the better to secure the payment conveyed the real estate to Harnstrom, and that although the conveyance appeared on its face to be absolute it was not intended to be such; that Grossman claimed some right in the premises, the precise nature of which was unknown to the complainant; that the premises were scant and meager security for the payment of the amount due complainant, etc. The bill contained the usual prayer for reveiver and for foreclosure of the second and third mortgages. A supplemental bill was filed by complainant alleging certain payments made by him on the first mortgage bond issue. Harnstrom filed his answer and cross-bill, alleging that neither of the Paces was indebted to him on October 27, 1922, in the sum of $25,000 or in any sum, but that on that day they conveyed to him the real estate for $30,000, and that there was no understanding or agreement between them for a reconveyance of the same, and that he held the title in fee simple; that the Paces had since sought to secure other moneys from him, and had claimed that his title was that of a mortgage, only, and in February, 1923, had executed a note and trust deed to Max Grossman for $60,000, and that William S. Pace had filed in the recorder's office of Cook county an affidavit alleging that the deed from himself and wife to cross-complainant was only as security for a loan of $25,000, and prayed in his cross-bill to have the said instruments made subsequent to his deed removed as clouds on his title and for the entry of a decree quieting, confirming, and establishing his title in fee simple. Issues were formed on the bill and cross-bill and answers, and thereafter Charlotte L. Pace filed her cross-bill, alleging that on October 28, 1922, William S. Pace borrowed $25,000, and to secure the same, with interest at 7 per cent. and $5,000 commission, they conveyed the said real estate to Harnstrom; that the deed was not intended to be an absolute conveyance, but only security; that she repeatedly offered to repay him, and he refused to receive the same and reconvey. She prayed for an accounting, and upon payment by her to Harnstrom of what should be found due him that said Harnstrom be decreed and compelled to reconvey. Harnstrom answered, denying the allegations of the cross-bill and alleging that he was the owner in fee of the real estate, free and clear of the interest of the Paces. Replications were filed to all answers to this bill and issues were joined.

The evidence upon all of the issues was conflicting, and there was a dispute as to the value of the property. The master found the amount due George Lill to be $70,375.72, including $4,000 solicitor's fees, for which he held Lill had a lien on said...