Orvis v. Cole

• Decision Date: 31 December 1883
• Citation: 14 Ill.App. 283,14 Bradw. 283
• Parties: LAVINA L. ORVISv.M. H. COLE.
• Court: United States Appellate Court of Illinois

14 Ill.App. 283

14 Bradw. 283

LAVINA L. ORVIS

v.M. H. COLE.

Appellate Court of Illinois, Second District.

December Term, 1883.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of McHenry county; the Hon. CHARLES KELLUM, Judge, presiding. Opinion filed February 29, 1884.

This bill in equity was filed by the plaintiff in error, the wife of Samuel L. Orvis, against the appellees, praying for an injunction and for general and special relief.

Briefly stated, the allegations of the bill are, that appellant was the owner by inheritance from her father, of the south 113 acres of a certain quarter section of land, and that she became the purchaser with her own means, of the north 49 acres of the same quarter, but the deed therefor was taken to herself and said Samuel, her husband, jointly. That for twelve years said premises had been the homestead of herself and family, and was still occupied as such. That on or about the 17th day of July, 1876, she and her husband conveyed said premises by deed absolute upon its face, but in reality, by way of mortgage to Miles H. Cole, to secure the payment of about $3,807.

That said Cole, at the September term, 1878, of the McHenry Circuit Court, exhibited his bill to foreclose said mortgage, making the said Samuel the party defendant, and obtained a decree of foreclosure against him for $3,870.45, and an order for the sale of said premises. That the master in chancery sold the same under said decree to said Cole in full satisfaction of said decree, and not being redeemed, the master executed to Cole a deed for the premises.

She then claims by her bill that the mortgage was paid by such sale, and her interest in the land discharged, and as she was not a party to the proceedings to foreclose, the decree is not binding upon her, and that as against her title the deed of the master is void, and should be removed as a cloud.

Further shows that Cole procured a writ of assistance to issue in said proceedings to put him in possession of said premises, but as she was not a party such writ was practically useless to him, and he thereupon commenced a suit of forcible detainer against her and her husband before appellee Baldwin, a justice of the peace, and obtained judgment, and threatens to sue out a writ of possession and will do so unless enjoined. That the judgment against her and her husband before said justice was based upon a lease of said premises made by Cole to her husband after the execution of the deed to him.

The judge of the circuit court refused an injunction upon the bill, and on the 29th of September, 1880, in term time, the complainant asked for and obtained leave to file an amended and supplemental bill. Cole filed his answer to the original bill, and the case was continued to the next term.

At the next term of court the solicitor of complainant withdrew his appearance, and upon defendant's motion the suit was dismissed for want of prosecution. In vacation after said term, the complainant applied to the judge of said court for an order re-instating said cause, and renewed her application to file amended and supplemental bill. An order was signed by the judge granting her application, which was filed with the clerk, and thereupon the complainant filed a supplemental bill and therein included certain amendments to her original bill. She alleges, by way of amendment, that said premises greatly exceeded in value the amount of said mortgage debt, and while still insisting that the debt was paid by sale of the interest of her husband therein, yet avers her readiness to redeem said premises, if the court should not find said debt paid; and that she has offered to pay said Cole the amount of said mortgage indebtedness, but he refuses to receive the same, denying her right to redeem.

She also charges, by way of supplement to her original bill, that since she filed said bill, said Cole, by virtue of the proceedings before said justice, has obtained the possession of said premises, and is in the receipt of the rents and profits thereof, and prays that an accounting may be had and she be allowed to redeem upon paying the amount that may be found due him by final decree.

The case was placed upon the docket, and at the September term, 1881, the defendant entered his motion to strike from the files the order made in vacation re-instating said cause. At the next term, the above motion was set down for hearing in vacation and the cause continued.

At the May term a cross-motion was entered for an order re-instating said cause, which was also set down to be heard in vacation.

Nothing further appears to have been done in said cause until the January term, 1883, when by consent the order re-instating said cause was vacated because entered in vacation; and thereupon, the complainant entered her motion to re-instate said cause, which was sustained, and also asked leave to file amended and supplemental bill.

The defendant, Cole, thereupon asked and obtained leave to withdraw his answer and to file a demurrer to the bill, which was allowed, and the court sustained the demurrer and dismissed the bill, and the record is brought to this court by complainant by appeal.

Messrs. GENTLEMEN & FLOWER and Mr. C. B. CHAPMAN for plaintiff in error; that in favor of the equity of redemption, a court of chancery will allow a deed absolute on its face to be shown to be a mortgage, cited DeWolf v. Strader, 26 Ill. 225; Bispham on Equity, § 155; Tillson v. Moulton, 23 Ill. 648; Price v. Karnes, 59 Ill. 276; Deven v. Blake, 44 Ill. 135: Parmelee v. Lawrence, 44 Ill. 405.

Once a mortgage, always a mortgage: Bispham on Equity, § 153; Newcomb v. Bonham, 1 Vern. 7; Price v. Perrie, 2 Freem. 258; Willet v. Winnell, 1 Vern. 488; Jones on Mortgages, § 7.

On a bill to foreclose a mortgage, the mortgagor is an indispensable party: Lane v. Erskine, 13 Ill. 501; Harvey v. Thornton, 14 Ill. 217; Gilbert v. Maggord, 1 Scam. 471; Ohling v. Luitjens, 32 Ill. 23; Walsh v. Truesdell, 1 Bradwell, 126; Hopkins v. Roseclare Lead Co., 72 Ill. 373; Michigan Ins. Co. v. Brown, 11 Mich. 265; Worthington v. Lee, 2 Bland (Md.), 678; Moore v. Starke, 1 Ohio, 369; DeLeon v. Hignera, 19 Ala. 200; Hall v. Nelson, 23 Barb. 88.

When a sale on execution would cast a cloud upon title, equity will interfere by injunction: Groves v. Webber, 72 Ill. 606; Christie v. Hale, 46 Ill. 117.

Leave to amend pleadings necessary to present an issue on the merits of a cause is no longer discretionary with the court, but is the legal right of the party: Drake v. Drake, 83 Ill. 525; Knickerbocker Ins. Co. v. McGinnis, 87 Ill. 70; Empire Fire Ins. Co. v. Real Estate Trust Co., 1...