Robnett v. Miller

• Decision Date: 21 June 1922
• Docket Number: No. 14668.,14668.
• Citation: 303 Ill. 515,135 N.E. 705
• Parties: ROBNETT et al v. MILLER et al.
• Court: Illinois Supreme Court

303 Ill. 515

135 N.E. 705

ROBNETT et al

v.MILLER et al.

No. 14668.

Supreme Court of Illinois.

June 21, 1922.

Error to Circuit Court, Marion County; collect the taxes due after 1912 upon the untaken

Suit by James M. Robnett and others against F. B. Miller and others to have a deed declared a mortgage. From a decree dismissing the bill for want of equity, and allowing defendants the leave prayed for by their cross-bill, complainants bring error.

Affirmed.

L. B. Skipper, of Centralia, and E. B. Vandervort, of Salem, for plaintiffs in error.

Wham & Wham and Noleman, Smith & Dallstream, all of Centralia, for defendants

CARTER, J.

This was a bill filed in the circuit court of Marion county, asking to have a deed to nine lots in Centralia, in said county, declared a mortgage. Defendants in error answered the bill, denying that the deed was a mortgage, and filed a cross-bill, in which they asked that a certain contract be declared forfeited, and that a deed given by plaintiff in error James M. Robnett to his son, C. C. Robnett, to two of said lots, might be canceled. After the pleadings were settled, the case was heard by the chancellor, and a decree was entered in favor of defendants in error on their cross-bill; the original bill as amended being dismissed for want of equity. The case has been brought here by writ of error.

In March, 1905, James M. Robnett and his wife, he then being the owner of 12 lots in Schoolsite addition to Centralia, conveyed them by warranty deeds to A. H. Young. In April, 1907, Young and his wife conveyed the lots by warranty deed to defendant in error Isaac O. Hester, and on the same date Hester entered into a contract with Robnett, by which it was agreed that Hester would convey the 12 lots to Robnett for a consideration of $1,500, and Robnett agreed to pay the consideration for the same on or before April 2, 1908, with interest at 7 per cent., Robnett to pay the taxes and assessments levied subsequent to the year 1906. The contract contained a provision that, in case of failure of the second party to make either of the payments, or any part thereof, or perform any of the covenants on his part, the contract should, at the option of the first party, be forfeited and determined, and the second party should forfeit all payments made by him, and such payments should be retained by the first party in full satisfaction and in liquidation of all damages by him sustained, and he should have the right to re-enter and take possessionof the premises. The contract also provided that time should be the essence of the contract. There was a further provision that the first party agreed to execute and deliver a good and sufficient deed to the second party of any lot described in the contract on the payment of $125 and interest to the first party, and that the second party might have deeds to any or all of such property under the same terms and conditions.

The record shows that in 1908 Robnett paid Hester $375, and Hester deeded him three of the lots in accordance with the provisionsof the contract. The record also shows that, under this contract between Robnett and Hester, Robnett made, other payments, one of $40 on October 9, 1907, one of $65 on April 2, 1908, and one of $5 at a date not shown. On May 22, 1920, Hester conveyed the nine lots in question still standing in his name to defendants in error B. M. English and F. B. Miller; the deed to them stating that it was subject to the contract dated April 2, 1907, between Hester and Robnett. English and Miller, on the day they received the deed, or very shortly thereafter, served a notice on Robnett stating that he had defaulted in the terms agreed upon in the contract and had been in default since November 6, 1913, and had suffered the premises to be sold for nonpayment of taxes, and that English and Miller thereby declared the contract forfeited and determined, and that all payments made thereon were forfeited and would be retained by them in full satisfaction and liquidation of all damages, unless Robnett should, on or before June 2, 1920, pay the balance due, and interest, and refund all moneys paid for taxes. It does not appear from the record that Robnett took any steps in response to this notice within the time therein mentioned, or communicated in any way with defendants in error with reference to the same.

The record shows that on July 24, 1920, Miller and English entered into a contract with a builder for the construction of two houses on the property, costing approximately $2,000 each, the houses to be completedduring the summer. In September, 1920, after the completion of said houses, this bill was filed in the circuit court. The record also shows that Robnett and his wife conveyed to their son, Chauncy, two of the lots in question in June, 1913. Chauncy testified that he paid his father $510 for one of these lots in installments, and that the other lot was a present to him from his father. Young, who received the deeds from Robnett for the 12 lots and afterwards conveyed the 9 lots here in question to Hester, died some time before the trial.

Counsel for defendants in error argue that this court does not have jurisdiction of this case, but that it should have been taken to the Appellate Court, as no freehold is involved. This court has held that a freehold is involved, ‘within the sense of the Constitution and statute, only in cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, or when the title is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue.’ Prouty v. Moss, 188 Ill. 84, 58 N. E. 926;Malaer v. Hudgens, 130 Ill. 225, 22 N. E. 855;Sanford v. Kane, 127 Ill. 591, 20 N. E. 810. In case the decree of the circuit court should be reversed in this proceeding, Miller and English would lose a freehold, and Robnett and his son would gain such a freehold. The writ of error was properly sued out direct to this court.

Plaintiffs in error claim that the original deeds to these lots from James M. Robnett and wife to Young were given as security for an indebtedness and were in the nature of mortgages, and that the deed from Young and his wife to Hester was given with the understanding between Robnett, Young, and Hester that it should be taken as security for the indebtedness owed by Robnett to Young, and thereafter to Hester. Section 12 of chapter 95 of our statutes provides:

‘Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.’ Hurd's Stat. 1921, p. 2150.

To warrant the court in declaring a deed absolute in form to be a mortgage, the evidence must be clear, definite, unequivocal, convincing, and satisfactory. Friend v. Beach, 276 Ill. 397, 114 N. E. 911;Helm v. Boyd, 124 Ill. 370, 16 N. E. 85;Fisher v. Green, 142 Ill. 80, 31 N. E. 172;Illman v. Kruse, 301 Ill. 408, 134 N. E. 107.

The principal testimony on behalf of plaintiffs in error on the point that the deed was given as security for money loaned was that of James M. Robnett. He testified that he was 73 years of age at the time of the hearing, and while evidently very firm in the belief that the deeds from himself to Young, and from Young to Hester, were given as mortgages, we are unable to ascertain...