McCampbell v. Warrich Corporation

• Decision Date: 12 January 1940
• Docket Number: No. 6959.,6959.
• Citation: 109 F.2d 115
• Parties: McCAMPBELL v. WARRICH CORPORATION et al.
• Court: U.S. Court of Appeals — Seventh Circuit

109 F.2d 115 (1940)

McCAMPBELL v. WARRICH CORPORATION et al.

No. 6959.

Circuit Court of Appeals, Seventh Circuit.

January 12, 1940.

COPYRIGHT MATERIAL OMITTED

Peter J. Hower, of Chicago, Ill., and R. Ruthenburg, of Louisville, Ky., for appellant.

H. L. Reeve and Elmer Leesman, both of Chicago, Ill., for appellees.

Before SPARKS, TREANOR, and KERNER, Circuit Judges.

SPARKS, Circuit Judge.

This is alleged to be an action in equity in which appellant seeks to be adjudged the owner of eleven-sixtieths undivided interest in fee simple of certain valuable real estate within the city of Chicago. As incidents to complete relief he asks for a receiver, for injunctive relief, ejectment of tenants, annulment of leases, for a lien, and that the cause be retained on the docket for the purpose of granting all other helpful orders.

The original bill was filed March 17, 1938. It seems to have been amended before answer, for the court, prior to July 25, 1938, sustained appellee's motion to dismiss the original bill as amended. Obviously, it was amended a second time, for on July 25, 1938, appellees again filed their motion to dismiss the amended complaint in which motion it is stated, among other things, that the amended bill is not materially different from the original bill, as amended, to which a former motion to dismiss was sustained. On January 6, 1939, before the motion of July 25, 1938, was passed upon, appellant filed what it terms its third amended petition, which merely adds to the original complaint, as amended, certain matters hereinafter referred to. On motion of appellee, the former motion to dismiss the amended bill was ordered to stand as the motion to dismiss the third amended petition. On January 9, 1939, this motion was sustained, and the amended bill of complaint and the third amended petition were dismissed at appellant's costs. From this order the appeal is prosecuted.

The substantial averments of the bills are as follows: Appellant is a son of Sallie B. McCampbell who was a daughter of James M. Bryant. On August 28, 1866, James M. Bryant made a deed in which he conveyed the real estate here in controversy, after his death, to his children James L. Bryant, Leila Bryant, Sallie B. McCampbell and Pattie B. Rowland (referred to as parties of the second part) for their lives, and to the issue or heirs of their bodies respectively, per stirpes, in fee simple; provided, that if any one or more of the parties of the second part should die without leaving issue or bodily heirs, then his or their portion or portions were to survive and go to and be held by the surviving party or parties of the second part respectively for life or lives and then to the issue or heirs of the body of the survivor or survivors in fee simple. This deed was made in contemplation of a second marriage, which was subsequently consummated on the same day.

Sallie Bryant McCampbell, who died December 23, 1910, was the only child of James M. Bryant by his first wife, who died leaving bodily issue, or bodily heirs. James L. and Leila preceded her in death, and Pattie died August 8, 1934. James M. Bryant, the grantor, died December 1, 1888. Sallie Bryant McCampbell was survived by the following children: Roberta, Amos G., Leavelle, Georgia, and Leila. Roberta, the eldest, was born in 1876 and was never married. Amos G., appellant, was born August 16, 1882. He was adjudged insane May 23, 1901, and was adjudged of sound mind April 3, 1936. James L. preceded his father in death.

The deed in issue reserved to the grantor the right and power to charge the property conveyed "by mortgages or trust deeds conveying the fee simple title thereof," and provided that no person or persons who might make a loan or loans on such mortgages or trust deeds should be required to look to the application of the moneys.

In January 1872, James M. Bryant executed a mortgage on this property, and having become in arrears on the interest, a suit to foreclose it was begun in 1886, in the District Court, referred to as cause No. 16059. Before the termination of this suit James M. died on December 1, 1888. At that time his three surviving daughters became vested with a life interest in the real estate, and in 1889 they sold and conveyed their life estates therein to Robert W. Hyman, Jr., for $15,000. Thereafter the receiver in the foreclosure suit was discharged, and Hyman took and retained possession of the property, collecting the income therefrom, until he sold the life estates, which he had bought from the three daughters, to Edward D. Mandell in 1895 for $20,000. In the meantime Mandell had purchased the mortgage in 1892, and he obtained a judgment for $38,647.90, and a final decree of sale in the foreclosure proceeding on October 2, 1893, in which proceeding Robert W. Hyman, Jr., and all the children of Sallie B. McCampbell, including appellant, all of whom were minors, were parties defendant. The minors were represented by guardian ad litem. Under this decree the property, except the life estates of the daughters, was sold to Mandell for the amount of the judgment on November 18, 1893, and on February 27, 1895, the master's deed therefor was delivered to Mandell.

Four children were born to James M. Bryant and his second wife, all of whom were living at his death.

The third amended petition relies upon estoppel and seeks to set aside the judgment and all proceedings in cause No. 16059, as a nullity, because the mortgagee failed therein to assert or enforce his lien against the life interests, and for the further reason that neither Hyman nor Mandell could hold the life estates adversely to the remainder interests.

It is clear that appellant's right to recovery in this case is based upon what he claims to be the invalidity of the foreclosure decree entered in the District Court of the United States on October 2, 1893. It is equally clear that the present proceeding is a collateral attack upon that decree, which is now more than forty-six years of age. Such an attack is not permissible if the court had jurisdiction over the parties and the subject matter. Hall v. American Bankers' Insurance Co., 315 Ill. 252, 146 N.E. 137. It is not shown and the bill does not disclose that there was lack of jurisdiction in either respect. Furthermore, the bill fully discloses that the court had jurisdiction both of the subject matter and of the parties, and it is not charged that there was fraud in any way affecting jurisdiction. Moreover, if there were no disclosures in the bill in this respect, it is well settled that jurisdiction over the person as well as the subject matter will be presumed when the validity of the judgment is questioned collaterally. Nickrans v. Wilk, 161 Ill. 76, 43 N.E. 741. The jurisdiction which a court of chancery has over a foreclosure proceeding is inherent and not a statutory jurisdiction. In re 7000 S. Shore Drive Building Corp., 7 Cir., 86 F.2d 499; First National Bank v. Bryn Mawr Building Corp., 365 Ill. 409, 6 N.E. 2d 654, 109 A.L.R. 1123. Jurisdiction having once attached, the decree of the court must...