Neale v. Parks
| Decision Date | 18 January 1951 |
| Docket Number | No. 31654,31654 |
| Citation | 96 N.E.2d 524,408 Ill. 212 |
| Parties | NEALE v. PARKS et al. DRUGGAN v. NEALE. |
| Court | Illinois Supreme Court |
Martin G. Loeff, of Chicago, for appellants.
Francis M. Lowes, of Chicago, for appellee.
The defendant Archie Parks, and the counterplaintiff, Elizabeth Druggan, both by appeal and cross appeal, seek reversal of a decree of the circuit court of Cook County entered upon the amended and supplemental petition of counterplaintiff.
Elizabeth Druggan, the ostensible owner of the property in question, known as number 4912 West Washington Boulevard, Chicago, made a mortgage to Home Federal Savings and Loan Association for $5000 which was assigned to plaintiff, Julius S. Neale, as trustee, for a good and valuable consideration. Neale, as trustee, filed on August 3, 1943, a complaint for foreclosure, and a decree therefor was entered on September 22, 1943. This decree is still in full force and effect and is not in question here. Subsequent to the entry of this decree, Elizabeth Druggan, who had not been served in the original foreclosure action and was later dismissed as a party defendant, filed an amended and supplemental petition, which stands as her counterclaim, claiming to be the owner in fee simple of the premises in dispute and praying she be permitted to become a party to the foreclosure suit; that she be permitted to pay the mortgage; that the decree of foreclosure be vacated; and that two deeds, one from herself to Edith Phillips dated January 10, 1941, and one from said Edith Phillips to the defendant Archie Parks, dated January 20, 1942, be vacated and declared to be illegal and void for the reason the deed to Edith Phillips was to be construed as a mortgage for advances never made, and the deeds were, therefore, without consideration. Among the many charges made were that Elizabeth Druggan never owned the property, except as a convenience for her son, Terry Druggan, who represented that he owned the premises and that Edith Phillips held title for him. Elizabeth Druggan asserts the defendant Archie Parks furnished the funds for the purchase of the original mortgage by Neale, and that Parks is the real owner thereof. She also claims John Phillips, husband of Edith Phillips and a realestate broker, was her agent with authority to handle and the deal with the property and admits the deed was given for money to be loaned but claims nothing was ever paid thereunder and alleges all this was with the knowledge of the defendant Archie Parks.
The master found the deed to Edith Phillips was made to secure loans made to Terry Druggan and that Parks accepted the deed as security for the loans made, and recommended that, upon payment of the amounts due under the mortgage and interest thereon, and of amounts advanced by Parks upon said mortgage and for upkeep of the premises, Parks and Neale shall release and cancel the trust deed and that Parks shall convey all his title to Mrs. Druggan, and that the foreclosure suit be then dismissed for want of equity and all notes be canceled; and that both parties pay the costs equally. The chancellor on May 4, 1950, entered a decree granting leave to Elizabeth Druggan to file an amendment to her counterclaim instanter, adding a further prayer in the alternative for a decree adjudging that the deeds of conveyance to Edith Phillips and Parks, though absolute in form, were in the nature of mortgages; overruled certain exceptions to the master's report and sustained others; and found that Elizabeth Druggan was entitled to redeem said premises by paying to Archie Parks $6045.78 without interest, less the amount she is entitled to have upon an accounting by Parks for rent on and after August 1, 1943, to December 31, 1947; that the attorney for Neale owned the mortgage and was, therefore, not entitled to attorney's fees; that the $6500 deposited in court by Elizabeth Druggan should not bear interest; that Elizabeth Druggan is entitled the redeem the premises from the deed in the nature of a mortgage to Parks upon paying to him what may be due when the account is stated and approved by the court; and holds the deeds from Edith Phillips and John Phillips, her husband, to be in truth and fact a mortgage for sums advanced to Terry Druggan in the amount of $6045.78; and that Elizabeth Druggan by her conduct, inaction, and acquiescence authorized and permitted and suffered the title to be used for this purpose and that Parks knew or should have known Edith Phillips held title for the benefit of Elizabeth Druggan. The decree further commands Elizabeth Druggan to pay the money found due on the accounting and upon payment Parks shall execute and deliver his quitclaim deed free and clear of all encumbrance to Elizabeth Druggan or to such person as she may direct; that, if she shall first fail to pay the amount found due to Parks, her counterclaim shall stand dismissed for want of equity and she shall be forever barred from all claims, including her equity of redemption and including also her right of redemption from the first mortgage and also from the deeds to Edith Phillips and from the latter to Parks. The decree confirms the master's report except in certain particulars and reserves jurisdiction of the receivership, the parties and the receiver for the purpose of terminating the receivership.
Appellee, although filing a cross appeal, questions the jurisdiction of this court on the ground a freehold is not involved. Our first consideration must be directed to this contention...
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People v. Hess
...decision with respect to the ownership of the real estate in controversy. Johnson v. Sarver, 413 Ill. 626, 110 N.E.2d 211; Neale v. Parks, 408 Ill. 212, 96 N.E.2d 524; Horner v. Winnebago County, 396 Ill. 382, 71 N.E.2d Ordinarily a decree establishing a right of redemption does not involve......
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