Reagan v. Hooley

• Decision Date: 21 December 1910
• Citation: 93 N.E. 380,247 Ill. 430
• Parties: REAGAN v. HOOLEY et al.
• Court: Illinois Supreme Court

247 Ill. 430

93 N.E. 380

REAGAN

v.HOOLEY et al.

Supreme Court of Illinois.

Dec. 21, 1910.

Appeal from Circuit Court, Cook County; Charles M. Walker, Judge.

Action by Ellen Reagan against Elizabeth Hooley (now Elizabeth Morris) and others. Judgment for defendants, and plaintiff appeals. Cause transferred to the Appellate Court for the First District.

John M. Duffy, for appellant.

Rogers & Mahoney, for appellees.

CARTER, J.

The original bill filed in this case in the circuit court alleged a trust in favor of the heirs or legatees of one Mary Whouley. Thereafter the bill was amended, praying that a certain warranty deed be declared a mortgage. On a hearing this amended bill was dismissed for want of equity, and the case has been appealed to this court.

Mary Whouley, an unmarried woman, died on June 26, 1896. On May 12, 1896, she gave a warranty deed to Elizabeth Hooley for the express consideration of $1, transferring certain real estate in the city of Chicago. The amended bill prays that this deed be declared a mortgage to secure certain advances made by Elizabeth Hooley to said Mary Whouley, and that said Elizabeth Hooley either be required to foreclose the same, or that the property be sold under an order of court, and said Elizabeth Hooley, after an accounting, be required to pay over the balance of the proceeds of said sale to the heirs or legatees of said Mary Whouley.

Under a long line of decisions this court has held that in a suit to have a deed absolute on its face declared a mortgage no freehold is involved, and the appeal or writ of error lies to the Appellate Court, and not to this court. Adamski v. Wieczorek, 181 Ill. 361, 54 N. E. 1034;Kirchoff v. Union Mutual Life Ins. Co., 128 Ill. 199, 20 N. E. 808;Schoendubee v. International Building Loan & Investment Union, 183 Ill. 139, 55 N. E. 710;Eddleman v. Fasig, 218 Ill. 340, 75 N. E. 977;Burroughs v. Kotz, 226 Ill. 40, 80 N. E. 728;Halbert v. Turner, 233 Ill. 531, 84 N. E. 704. The allegations of the bill with reference to the foreclosure and for an accounting are all collateral and incidental to the main allegations of the bill, which prays that the deed be declared a mortgage. Even if they were the principal averments in the bill, that would not give this court jurisdiction, as a bill to foreclose a mortgage does not involve a freehold. Pinneo v. Knox, 100 Ill. 471;McIntyre v. Yates, 100 Ill. 475;Akin v. Cassiday, 105 Ill. 22;MacDonald v. Dexter, 234 Ill. 517, 85 N. E. 209;Kronenberger v. Heinemann, 190 Ill. 17, 60 N. E. 64. Neither would a freehold be involved in a bill of this nature for an accounting. Nevitt v. Woodburn, 175 Ill. 376, 51 N. E. 593;Klein v. Independent Brewing Ass'n, 231 Ill. 594, 83 N. E. 434; Adamski v. Wieczorek, supra.

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