Lobstein v. Lehn

• Decision Date: 12 May 1887
• Citation: 120 Ill. 549,12 N.E. 68
• Parties: LOBSTEIN v. LEHN and others.
• Court: Illinois Supreme Court

120 Ill. 549

12 N.E. 68

LOBSTEIN

v.LEHN and others.

Supreme Court of Illinois.

May 12, 1887.

Appeal from appellate court, First district.

Theo. h. Shintz, for appellant and plaintiff.

Hugh L. Burnham, for appellees.

SHELDON, J.

This was a bill filed by John G. Lobstein to set aside a warranty deed made by the defendant Andrew Lehn to his co-defendants Helmont Kasch and Arie Van Deursen, on the ground of the same being fraudulent as against creditors, and to subject to a sale, under complainant's execution, the lands thus conveyed. The bill was taken pro confesso against Lehn; and Kasch & Van Deursen answered, denying any fraudulent intent, alleging that Lehn was indebted to them in the sum of $1,453.29, and that the deed was accepted by them upon the trusts set forth in a certain agreement, a copy of which is attached to their answer. Afterwards Kasch & Van Deursen filed a cross-bill setting out that the deed was given and received simply as security for a debt due them, and praying relief accordingly. The cross-bill went by default against Lehn, and complainant's bill was allowed to stand as his answer to the cross-bill. Upon hearing on proofs taken, a decree was entered to the effect that unless Lehn pay to Kasch and Van Deursen, by a certain day, the sum of $2,084.11, (composed of $527.01 due them under a trust deed made by Lehn in their favor to one Van Vlissengen, and $1,557.10 paid by them for Lehn under the agreement or declaration of trust,) and also satisfy the judgment for $490.91 and costs which Lobstein had obtained against Lehn, the lands should be sold subject to the lien of the other above-described trust deed thereon, and the proceeds of sale be applied first in payment to Kasch & Van Deursen of said sum of $2,084.11, and then of Lobstein's judgments. On appeal to the appellate court for the First district the decree was affirmed, and complainant appealed to this court.

A motion was made by appellee to dismiss the appeal because the amount in controversy is less than $1,000 exclusive of costs. The value of the land was some $4,500. It is said by appellees that the amount in controversy is the amount of appellant's judgment, which, together with interest, is less than $1,000. However it might have been under the original bill before the cross-bill was filed, after the filing of the cross-bill we think it became a matter in contest what sum of money should be paid to the mortgagees Kasch & Van Deursen in order to redeem. Kasch & Van Deursen claim that they are entitled to $2,084, and the decree upholds their claim. Lobstein, in order to preserve his rights as a judgment creditor having a lien on the lands, had a right to redeem. Lobstein was made a party to the cross-bill because of his right to redeem if the deed and instrument in question are a mortgage, and the contest between him and the parties claiming as mortgagees, as to the amount to be paid to redeem, involves an amount over $1,000. We are inclined to the view that Lobstein should stand in the same position in regard to an appeal as if the cross-bill had been an original bill to foreclose, or the complainant's bill had been a bill to redeem, and the decree entered by the court below contained a provision for redemption by Lobstein, on payment to Kasch & Van Deursen of a sum over $1,000 beyond that claimed by him to be due. The motion to dismiss the appeal is overruled.

The circumstances attending the execution of the alleged fraudulent deed were that Lehn was indebted to Helmont Kasch in the sum of $500, and to the firm of Kasch & Van Deursen of $500; to secure the payment of which latter claim Lehn had before executed his notes to Kasch & Van Deursen for $500, and his trust deed to...