Lithuanian Alliance of America v. Home Bank & Trust Co.

• Decision Date: 14 February 1936
• Docket Number: No. 23184.,23184.
• Citation: 200 N.E. 167,362 Ill. 439
• Court: Illinois Supreme Court
• Parties: LITHUANIAN ALLIANCE OF AMERICA v. HOME BANK & TRUST CO., et al.

362 Ill. 439

200 N.E. 167

LITHUANIAN ALLIANCE OF AMERICA

v.HOME BANK & TRUST CO., et al.

No. 23184.

Supreme Court of Illinois.

Feb. 14, 1936.

Foreclosure proceeding by the Lithuanian Alliance of America against the Home Bank & Trust Company, trustee, and another, wherein Theodore A. Poszka, Conservator of the estate of Felicia A. Poszka, the insane wife of Frank Poszka, the beneficial mortgagor, was made a party and filed an answer and cross-bill.From an order sustaining a demurrer to and dismissing the cross-bill, the conservator appeals.

Case transferred to Appellate Court for First District.Appeal from Circuit Court, Cook County; John Prystalski, judge.

Anthony A. Slakis, of Chicago, for appellant.

Eugene D. Sullivan and George J. Menkas, both of Chicago (Kasimir P. Gugis and Abraham Miller, both of Chicago, of counsel), for appellee.

STONE, Chief Justice.

Appellant seeks review of the order of the circuit court of Cook county sustaining a demurrer to and dismissing his cross-bill in a foreclosure proceeding.A bill was filed by the Lithuanian Alliance of America, a corporation, to foreclose a trust deed given by the Home Bank & Trust Company as trustee, holding for Frank A. Poszka, as beneficiary, the real estate pledged.Appellant is the conservator of the estate of Felicia Poszka, insane, the wife of Frank Poszka, the beneficial mortgagor.Felicia Poszka was not made a party either individually or through her conservator.Appellant, as such conservator, filed a petition for leave to be made a party and to file an answer and cross-bill.This leave was granted and an answer was filed, followed by the cross-bill involved in this appeal.

The cross-bill sets out that the property involved in the proceeding had been acquired by Frank A. and Felicia Poszka as joint tenants; that up to the time said Felicia Poszka was adjudged insane and committed to a state hospital for the insane she had never given a deed to the premises; that a certain deed dated April 17, 1922, and filed in the office of the registrar of titles, was made after said Felicia Poszka became incompetent to make a deed; and that her signature, if it was genuine, was procured by fraud.The cross-bill avers that notwithstanding the registration of title in the mortgagor as beneficiary of a trust, an undivided one-half of the property in fact belonged to said Felicia Poszka.The cross-bill prayed that the title be found as therein alleged; that the claims of the mortgagor and the others claiming an interest in the property be removed as clouds on her title; and that the property be partitioned.Appellee, complainant in the bill to foreclose, demurred generally and specially.The demurrer was sustained and the cross-bill dismissed.

The first question presented here is one of jurisdiction of this court.A freehold is not involved in a proceeding where the only relief sought by the bill is to foreclose a mortgage.National Bank of Republic v. 168 Adams Building Corp., 359 Ill. 27, 193 N.E. 511;Allen v. Allen, 242 Ill. 510, 90 N.E. 274;Van Meter v. Thomas, 153 Ill. 65, 38 N.E. 1036.It is likewise the rule long settled in this state, that questions of title cannot be litigated in a...