North Ave. Bldg. & Loan Ass'n v. Huber

• Decision Date: 07 February 1919
• Docket Number: No. 11940.,11940.
• Citation: 286 Ill. 375,121 N.E. 721
• Court: Illinois Supreme Court
• Parties: NORTH AVE. BUILDING & LOAN ASS'N et al. v. HUBER et al.

286 Ill. 375

121 N.E. 721

NORTH AVE. BUILDING & LOAN ASS'N et al.

v.HUBER et al.

No. 11940.

Supreme Court of Illinois.

Dec. 18, 1918.

Rehearing Denied Feb. 7, 1919.

Error to Second Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Jesse A. Baldwin, Judge.

Suit by the North Avenue Building & Loan Association and another against Christina Huber. Order denying motion of Albert J. Kemper and another, executors of the deceased co-complainant, William Kemper, to amend bill, and dismissing the bill, was affirmed by the Appellate Court (208 Ill. App. 271), and they bring error. Reversed and remanded, with directions.

Christian Meier and Goldzier, Rodgers & Froehlich, all of Chicago, for plaintiffs in error.

Frederick Mains, of Chicago (Ernest J. Batten and Harold O. Mulks, both of Chicago, of counsel), for defendant in error.

DUNCAN, C. J.

The North Avenue Building & Loan Association filed a bill in the circuit court of Cook county to foreclose a mortgage on property belonging to Christina Huber. After various amendments William Kemper, as trustee, was made a co-complainant, and the cause was tried in the circuit court upon the issues made on the answer of the defendants, Christina Huber and John Huber, her husband. The cause was referred to the master in chancery to take the testimony and report his conclusions. Objections and exceptions to the master's report were overruled by the court and a decree entered in accordance with the master's recommendations. The Appellate Court affirmed the decree. 208 Ill. App. 271. The decree of the circuit court and the judgment of the Appellate Court were reversed by this court, and the cause remanded to the circuit court for further proceedings. For a full statement of the facts in the case heretofore reviewed by this court, we refer to the opinion then rendered. North Avenue Building & Loan Ass'n v. Huber, 270 Ill. 75, 110 N. E. 312, Ann. Cas. 1917B, 587.

For a better understanding of the issues involved in this hearing it is necessary to further state that on July 15, 1914, the death of William Kemper was suggested in the circuit court, and his executors, Albert J. Kemper and Herman J. Westphal, under his last will were substituted as parties complainant, instead of William Kemper, individually and as trustee under said trust deed. On January 11, 1916, the mandate of this court was filed in the circuit court, remanding the cause for such further proceedings as to law and justice should appertain. January 15, 1916, a decree was entered by the circuit court dismissing the bill for want of equity; but this decree was set aside on motion of Albert J. Kemper and Herman J. Westphal, plaintiffs in error, on the ground that neither they nor their attorney had any actual notice, or other notice, of the motion to dismiss, made on that day as required by the rules of the circuit court. Plaintiffs in error filed a motion to dismiss as to the building and loan association, and also a motion for leave to amend the bill or to file an amended bill within 10 days therefrom, and for a rule on defendants to plead, answer, or demur to the same, in pursuance of the mandate of this court and in pursuance of the findings of fact as determined by the Appellate Court for the First District and in compliance with the opinion of this court, and for the purpose of finally determining the rights and equities of the estate of William Kemper in the premises, as predicated on the opinion and upon the facts set forth in the affidavit in support of said motion. Copies of the opinions of the Appellate Court and of this court were attached to and made a part of the motion.

The affidavit in further support of said motion set forth that on December 30, 1915, plaintiffs in error filed in the probate court of Cook county a supplemental inventory in the estate of William Kemper, scheduling as an asset of the estate the note and trust deed securing the same involved in this proceeding and disclosing title to the same in said estate under the decision of this court, which inventory was duly approved by the probate court; that on December 31, 1915, the North Avenue Building & Loan Association exhibited in the probate court its claim against the estate of William Kemper for the money by it paid to him during his lifetime for said note and trust deed, and that said claim was allowed by the probate court in the sum of $24,000.93; that on January 28, 1916, an order was entered by the probate court authorizing plaintiffs in error, as executors aforesaid, to proceed with the prosecution of the cause to enforce the rights and equities of the estate of William Kemper, in accordance with the opinion and finding of the Supreme Court; that said motion, in support of which the affidavit was made, was being pressed in compliance with the order of the probate court, and in accordance with the finding and opinion of the Supreme Court.

The trial court overruled the motion to amend or to file an amended bill on the ground that the motion was not accompanied by any proffered amendment or amended bill, and because the questions involved had been fully adjudicated by this court when the case was formerly before it, and also denied the motion of plaintiffs in error to dismiss the North Avenue Building & Loan Association out of the case. The original amended bill was then dismissed by the court at the court of the buildingand loan association. The executors then appealed from that order to the Appellate Court for the First District, which affirmed the order of the trial court. The cause was then brought to this court on certiorari, and this writ of error followed.

Upon the facts found by the Appellate Court, that the loan in question was made by William Kemper to Christina Huber, and that the note and trust deed taken by him to secure the same belonged to him in person when he took them, and afterwards undertook to sell and deliver the same to the North Avenue Building & Loan Association, this court held that such contract of sale and delivery to the building and loan association was ultra vires and absolutely void, and that no title or rights whatever passed to the building and loan association from Kemper by reason of that attempted sale and transfer. It was further expressly held by this court in that case that, as the building and loan association had no right or equity whatever in the note and trust deed, it could not maintain a bill to foreclose the trust deed. It was not held or decided in that case that Kemper or his estate could not maintain foreclosure proceedings or other character of action on the note and trust deed for the collection of the amount unpaid of the loan by Christina Huber. in the very nature of things no such holding could be made legally, as neither Kemper nor his executors were parties to the suit at that time in their individual capacities. The title to the note and trust deed was in Kemper when they were executed and delivered, and, so far as appears from the entire record in the case, the...