Schwing v. Miles

• Citation: 367 Ill. 436,11 N.E.2d 944
• Decision Date: 15 December 1937
• Docket Number: No. 24106.,24106.
• Parties: SCHWING et al. v. MILES et al.
• Court: Supreme Court of Illinois

367 Ill. 436

11 N.E.2d 944

SCHWING et al.

v.MILES et al.

No. 24106.

Supreme Court of Illinois.

Dec. 15, 1937.

Suit by Alfred W. Schwing, trustee, and others against Anna Miles and others. Decree for plaintiffs and defendants appeal.

Affirmed in part, and in part reversed and remanded, with directions.Appeal from Circuit Court, Jersey County; Victor H. Hemphill, judge.

Otto Kerner, Atty. Gen., and Hugh Cross, of Jerseyville (Truman A. Snell, of Springfield, of counsel), for appellants.

Richard H. Radley, Jr., of Peoria, for appellees.

PER CURIAM.

F. Lynden Smith, Director of the Department of Public Works and Buildings, and Clarence Wilson, prosecute this appeal from a decree of foreclosure and sale entered by the circuit court of Jersey county. They make the contention, among others, that the suit was, in effect, against the state of Illinois. To determine this issue a review of the pertinent facts and pleadings becomes necessary.

In 1924, Alfred W. Schwing, one of appellees, sold 120 acres of land in Jersey county to Anna Miles and Charles Miles, her husband. On February 28, 1924, the purchasers, in part payment, executed their note for $1,500, due two years after date, with interest at 7 per cent., and secured its payment by a trust deed in the nature of a mortgage upon the property. The trust deed was recorded in Jersey county on March 3, 1924. Default soon occurred in the payment of both principal and interest. Several years later, judgment was rendered against the mortgaged property for delinquent general taxes for 1927, and, in 1928, the property was sold to one Richards who, in turn, transferred his certificates of purchase to Clarence Wilson. On July 21, 1930, the county clerk issued a tax deed to him. Upon delivery of this deed Wilson went into possession of the premises. Thereafter, he filed a bill in the circuit court of Jersey county against William Wallace and others, to quiet title to the real estate described in the trust deed. Subsequent grantees of Anna and Charles Miles, all lienholders, including Schwing, and parties designated as unknown, were made defendants. Schwing was not, however, served with summons or with a copy of the bill of complaint, nor did he receive the notice, required by statute, to be sent him by mail. Wilson, by affidavit, alleged Schwing's whereabouts were unknown and sought to obtain constructive service upon him by publication in a newspaper in Jersey county. The latter was not otherwise brought into court prior to the entry of the decree in the suit to quiet title. That decree, entered on November 26, 1932, found, among other things, Wilson to be the owner of the property in fee simple by virtue of his tax deed, and, since the issuance and delivery of the deed, in actual possession of the premises; and, further, that no person had a lien on the property on account of any mortgages or trust deed. No written notice was ever served upon Schwing of this decree. Within one year from its rendition, namely, October 10, 1933, Schwing filed a petition in the circuit court, conformably to statute, praying that the decree be opened up as to him, that he be allowed to defend, and that the decree be amended to provide that the trust deed constituted a first lien on the property. Prior to the hearing upon his petition, Schwing served notice of the hearing upon all necessary parties. Wilson appeared by counsel at the hearing on Schwing's petition. On May 10, 1935, the decree of November 26, 1932, was modified by a finding that Anna and Charles Miles executed and delivered to Schwing their note and trust deed, that the trust deed was acknowledged and filed for record in Jersey county, and that it had never been released or canceled of record. The modifying decree then recited that none of the findings or orders in the original decree in Wilson v. Wallace et al. should in any way bind Schwing, or deprive him of any rights he might have had or which he then had either in the property or under the note and trust deed held and owned by him. It was accordingly ordered that the first decree be so amended that it should not, in any manner, affect the rights of Schwing in the premises or his rights under the trust deed or note, and, particularly, his right to foreclose, to sue modified decree thereupon dismissed Wilson's modified decree tehereupon dismissed Wilson's bill to quiet title for the want of equity as to Schwing. No appeal was prosecuted from that decree. After the entry of the original decree of November 26, 1932, but before Schwing filed his petition seeking to open it up, Wilson, on December 29, 1932, conveyed the premises by warranty deed to the state of Illinois for park purposes. The land is now situated within and is a part of Marquette State Park. The deed from Wilson to the state did not mention the incumbrance against the property.

On September 11, 1935, Schwing initiated this litigation. Anna Miles, Charles Miles, Wilson, and the Director of the Department of Public Works and Buildings of the state of Illinois were made parties defendant. The complaint alleged that the two last named had or claimed some interest in the premises, accrued since and subject to the lien of the trust deed. In particular, Schwing charged that, by statute, the Department of Public Works and Buildings of the state is given custody, control, and possession of all state parks; that thereby possession of the premises conveyed to the state vested in the director of the department; and, further, that whatever rights or interest he and the state of Illinois acquired in the land were subject to the trust deed. The relief sought was that the mortgagors be directed to pay plaintiff the amount due him, with costs; that in default of such payment the premises be sold; and that in case of sale and failure to redeem, the defendants be barred of all equity or right of redemption. The decree found that $2,955.14 was owing from defendants Anna Miles and Charles Miles to plaintiff, and ordered payment of this sum to the plaintiff, within ten days; that in default, the land be sold by the master; that if the sale price be insufficient to satisfy the decree, the defendants, their successors, and all claimants through or under them, be barred from all equity of redemption, and claim of, in, and to the mortgaged premises, or any part thereof, if not redeemed, according to law, by the defendants, their grantees or successors within twelve months from the sale, or judgment creditors and their assigns within the statutory redemption period, and, if not redeemed, that thereafter, upon the filing with the then acting master in chancery of the certificate of purchase, he should execute and deliver to the purchaser a deed to the premises in fee simple; and, further, ‘that upon the execution and delivery of the conveyance or conveyances aforesaid, the said purchaser or purchasers, his or their representatives or assigns, be let into possession of the portion of said mortgaged premises so conveyed to him or them; and that any of the parties in this cause, and his or their successors, who may be in possession of said premises, or any part thereof, and any person who, since the commencement of this suit, has come into possession, under them or either of them, or who has succeeded any of them including the said F. Lynden Smith, Director of the Department of Public Works and Buildings of the State of Illinois or his successor, on the production of the master's deed of conveyance, and a certified copy of the order of this court, confirming the report of said sale, shall surrender possession thereof to such purchaser or purchasers, their representatives or assigns.’ This decree was entered on February 5, 1937.

The defendants contend that although neither the state of Illinois nor the Department of Public Works and Buildings was actually made a party defendant, the suit was, nevertheless, in effect, one against the state, and hence, cannot be maintained. Section 26 of article 4 of our Constitution declares that: ‘The state of Illinois shall never be made defendant in any court of law or equity.’ The Department of Public Works and Buildings is a governmental agency of this state. Department of Public Works and Buildings v. Ryan, 357 Ill. 150, 191 N.E. 259. It is settled that a suit against the department is a suit against the state (O'Meara, Trustee, v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 367 Ill. 82, 10 N.E.2d 378;Noorman v. Department of Public Works and Buildings, 366 Ill. 216, 8 N.E.2d 637), and will not lie. On the other hand, where the action at law or suit in equity is maintained against a state officer or the director of a department on the ground that, while claiming to act for the state, he violates or invades the personal and property rights of the plaintiff under an unconstitutional act, or under an assumption of authority which he does not have, such suit is not against the state. Noorman v. Department of Public Works and...