Marshall v. Solomon Appeal of Lurie

• Decision Date: 14 October 1948
• Docket Number: Gen. No. 10261.
• Citation: 81 N.E.2d 777,335 Ill.App. 302
• Parties: MARSHALL v. SOLOMON et al. Appeal of LURIE.
• Court: United States Appellate Court of Illinois

335 Ill.App. 302

81 N.E.2d 777

MARSHALL

v. SOLOMON et al.Appeal of LURIE.

Gen. No. 10261.

Appellate Court of Illinois, Second District.

Oct. 14, 1948.

Appeal from Circuit Court, Lake County; Ralph J. Dady, Judge.

Action by Irl H. Marshall against Morris Solomon and others to foreclose a trust deed, in which S. C. Lurie filed a petition for leave to intervene. From an order denying leave to file an amended petition for leave to intervene, petitioner appeals.

Affirmed.Aaron Soble, of Chicago, and Lidschin, & Pucin, of Waukegan, for appellant.

Seago, Pipin, Bradley & Vetter, of Chicago, and Bernard M. Decker, of Waukegan, for appellee.

DOVE, Justice.

On November 15, 1945, Irl H. Marshall filed in the Circuit Court of Lake County his complaint seeking to foreclose a trust deed executed by Morris Solomon to the Chicago Title and Trust Company of Chicago Illinois on September 1, 1925 to secure the payment of a note for $20,000 due five years after date. Subsequently an amended complaint was filed alleging, among other things, that the plaintiff is the legal owner and holder of the note, the indebtedness evidenced thereby and the trust deed and that the real estate described in said trust deed was thereafter sub-divided into a subdivision consisting of eighty lots and known as Solomon's Addition to Deerfield; that the record legal title to certain described lots is vested in Thomas F. Sullivan, Thomas O'Malley, Fred A. Clarke and Louise Clark, Rose Stein and Henry D. Grief and that the record legal title to all the remaining lots secured by said trust deed is vested in Lincoln Trust and Savings Bank, as trustee, under the provisions of a trust agreement dated May 15, 1928, and known as Trust No. 144.

The maker of the note, Morris Solomon, who also executed the trust deed, the above named individual record legal title owners of the real estate described in the trust deed, together with John W. F. Smith, Receiver of the Lincoln Trust and Savings Bank, the Chicago Title and Trust Company, as trustee and others were made defendants, as subsequent grantees, mortgagees, tenants or parties in possession. The complaint also alleged that the beneficiaries under Trust No. 144 under which the said Lincoln Trust and Savings Bank was trustee were unknown to the plaintiff and such beneficiaries were made parties defendant as unknown owners.

Personal service was had on defendants, Morris Solomon, Lincoln Trust and Savings Bank, a banking corporation; John W. F. Smith, as Receiver of said Lincoln Trust and Savings Bank, a banking corporation and the Chicago Title and Trust Company. On December 20, 1945 an order was entered on motion of the plaintiff defaulting these defendants. This order recited that unknown owners were named as defendants in plaintiff's amended complaint and upon plaintiffs' motion leave was given plaintiff to file instanter, his affidavit of unknown owners and to make unknown owners defendants. On the same day an affidavit of unknown owners and also an affidavit of publication were filed by one of the attorneys for the plaintiff. In the affidavit of unknown owners it was stated, among other things, that ‘the beneficiaries under a certain trust agreement dated May 15, 1928 and known as Trust Number 144 under which Lincoln Trust and Savings Bank, a banking corporation, is trustee’ have or claim some right, title, interest or lien in, to, or upon the real estate, or some part thereof, in said amended complaint described and ‘that the name of each of such persons is unknown to plaintiff and to this deponent and upon diligent inquiry cannot be ascertained and all such other persons are made parties defendant to said action by the name and description of ‘unknown owners'.’

Following the filing of these affidavits, publication was made and on January 22, 1946 an order was entered again defaulting those defendants who had been personally served and also those served by publication including ‘unknown owners.’ On the same day the cause was heard by the Chancellor in open court and the usual decree of foreclosure and sale was rendered which found the amount due the plaintiff to be $31,900.90. In obedience to that decree, the Master on February 19, 1946 sold the premises described in the decree to the plaintiff for $20,587.90 and on February 23, 1946 the Master filed his report of sale, which was duly approved by the court on February 25, 1946.

On May 28, 1947 counsel for S. C. Lurie gave notice to counsel for plaintiff that he would present to the circuit court on June 5, 1947 a petition for leave to intervene in this proceeding and file a petition to vacate the decree of foreclosure and all subsequent orders and grant him leave to file an answer to the complaint and interpose the ten year statute of limitation. Upon a hearing of this motion leave was denied ‘for insufficiency of said petition on its face’ but leave was granted petitioner to present an amendment to said petition. Subsequently an amended petition for leave to intervene was presented and upon a hearing an order was entered on December 16, 1947 denying leave to file the same. It is to reverse that order that petitioner, S. C. Lurie, prosecutes this appeal.

It is insisted by counsel for appellant that the record discloses that the affidavit as to unknown owners is defective because the affidavit was made by one of the attorneys for the plaintiff while the statute required it to be made by the plaintiff. It is further insisted that the affidavit for publication is defective because it did not state that Thomas F. Sullivan was dead and did not make his unknown heirs and devisees parties defendant and is also defective because it did not make the beneficiaries in the trust parties defendant. It is further insisted that the certificate of publication (altho it certifies that the publication notice was published in the Waukegan News-Sun) is defective because it does not certify that the Keystone Printing Service, Inc., was the publisher of the Waukegan News-Sun. By reason of these alleged defects, counsel concludes the court did not acquire jurisdiction of the unknown owners and therefore the decree may be set aside at any time upon motion.

The conclusion we have reached makes it unnecessary to determine whether the affidavit as to unknown owners, or the affidavit for publication or the certificate of publication are subject to the several criticisms directed against them.

The petition which appellant sought leave to file alleged that at the time the foreclosure suit was filed the Lincoln Trust and Savings Bank as trustee under Trust Number 144, held title to certain real estate described in the complaint and that Sydney Chanock was the beneficiary under this trust and entitled to the earnings...