Prudential Ins. Co. of America v. Hoge

• Decision Date: 17 December 1934
• Docket Number: No. 22320.,22320.
• Citation: 193 N.E. 660,359 Ill. 36
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. HOGE et al.
• Court: Illinois Supreme Court

359 Ill. 36

193 N.E. 660

PRUDENTIAL INS. CO. OF AMERICA

v.HOGE et al.

No. 22320.

Supreme Court of Illinois.

Dec. 17, 1934.

Error to Circuit Court, Kendall County; William J. Fulton, Judge.

Bill by the Prudential Insurance Company of America against Charles C. Hoge and others, with a cross-bill by Eleanor Weir and others.To review a decree for complainant dismissing the cross-bill, the cross-complainants bring error.

Cause transferred to the Appellate Court.H. B. Smith, S. J. Holderman, and Arley Munts, all of Morris (Harry C. Daniels, of Elgin, and John M. Raymond, of Aurora, guardians ad litem), for plaintiffs in error.

De Goy B. Ellis, Paul M. Hamilton, and Harold H. Jordan, all of Elgin, for defendant in error.

SHAW, Justice.

Defendant in error, the Prudential Insurance Company of America, filed its bill in the circuit court of Kendall county seeking to foreclose a mortgage securing the payment of a note in the sum of $96,000 which had been executed by Charles C. Hoge and Carrie T. Hoge, his wife.The land described in the mortgage thus sought to be foreclosed was in part devised to the mortgagor by his deceased father, Samuel Hoge, and in part by his deceased mother, Matilda Hoge.In its billdefendant in error set forth that Eleanor Weir, Mabel Manchester, and S. Roy Hoge, the children of Charles C. Hoge, and other descendants of Samuel and Matilda Hoge, claimed some right, title, or interest in the premises sought to be foreclosed, but alleged that they had no such interest, and in addition to a decree of foreclosure prayed that these persons might be adjudged to have no title to the land nor any interest in it.Eleanor Weir, Mabel Manchester, and S. Roy Hoge filed answers and a cross-bill, setting forth the wills of Samuel Hoge and Matilda Hoge.They prayed that the title of Charles C. Hoge, the mortgagor, might be determined to be a base or determinable fee, with executory devise over to the cross-complainants so far as the will of Samuel Hoge passed any title, and a life estate only, with a contingent remainder over to the cross-complainants upon the death of Charles C. Hoge, so far as the will of Matilda Hoge was concerned.An answer to the cross-bill was filed.A guardian ad litem was appointed for minors and a trustee for the future issue of unborn children.Replication followed in due course, and upon a hearing the trial court made a finding construing the wills of Samuel Hoge and Matilda Hoge as vesting Charles C. Hoge with a fee-simple title, ordering a dismissal of the cross-bill and decreeing foreclosure for the amount found to be due.The cross-complainants have sued out a writ of error directly from this court.

Although neither party to this litigation questions our jurisdiction, it is necessary that we of our own motion should inquire as to that point.We have only such appellate jurisdiction as is given to us by law, and neither the...