Union Mut. Life Ins. Co. v. Kirchoff

• Citation: 149 Ill. 536,36 N.E. 1031
• Parties: UNION MUT. LIFE INS. CO. v. KIRCHOFF.
• Decision Date: 31 March 1894
• Court: Supreme Court of Illinois

149 Ill. 536

36 N.E. 1031

UNION MUT. LIFE INS. CO.

v.KIRCHOFF.¹

Supreme Court of Illinois.

March 31, 1894.

Appeal from appellate court, first district.

Bill for redemption brought by Elizabeth Kirchoff against the Union Mutual Life Insurance Company. Complainant obtained a decree, which was affirmed by the appellate court. Defendant appeals. Affirmed.

Frank L. Wean (E. Parmalee Prentice, of counsel), for appellant.

Harbert & Daley, for appellee.

WILKIN, J.

This cause was begun in the circuit court of Cook county by appellee against appellant, where a decree was entered dismissing the bill. On appeal to the appellate court of the first district, that decree was reversed (33 Ill. App. 606), and the cause remanded, with directions to have an account stated in the manner therein designated, and, when the amount due appellant was ascertained, to enter a decree that, upon the payment thereof, with interest, within 90 days, it should convey to appellee the lots in question, and that she recover her costs, but, if she failed to make such payment, her bill should be dismissed, at her cost. That judgment was affirmed by this court on appeal by the company. 133 Ill. 368, 27 N. E. 91. As shown by the opinion then filed, the bill was brought to redeem or enforce a reconveyance of certain real estate, to which the company had acquired title by quitclaim deed from Mrs. Kirchoff and husband, and under a decree of foreclosure in the circuit court of the United States. The controversy between the parties to the bill, then, was whether a contract had been entered into between the parties whereby the company, in consideration of a quitclaim deed by Mrs. Kirchoff to it and the payment of a certain sum of money, had agreed to reconvey to her the lots in question, and whether, if such agreement was made, the complainant was entitled, under all the facts of the case, to enforce it in this action. The terms of the contract and all the facts are there fully stated, and the merits of the case settled adversely to the company. On the remandment of the cause to the circuit court, it was referred to a master to state the account, in conformity with the directions given in the opinion of the appellate court. On the coming in of his report, the same was approved, and a decree entered requiring the complainant to pay the defendant $18,858.54, and interest, within 90 days, and thereupon the defendant to convey to her the premises. From this decree the company appealed to the appellate court, where a judgment of affirmance was entered, and it now appeals to this court.

Much of the argument of counsel for appellant is devoted to an effort to show a want of jurisdiction in the circuit court of Cook county over the subject-matter of this litigation. Whether, upon this second appeal, that is an open question, we do not deem it important to determine, being clearly of the opinion that the position of counsel is untenable. It is said the suit is brought to review and set aside a decree of the United States circuit court, and the bill is treated throughout the discussion as hostile to the foreclosure proceeding, or as attempting to obtain relief properly available in that action. This is a misapprehension of the scope and purpose of complainant's bill. In our former opinion we said: ‘After the settlement had been concluded, it turned out that certain incumbrances existed against some of the property, which were subsequent to the trust deed, but which would take priority to the quitclaim deed executed by complainant and her husband. It therefore became necessary, in order to obtain a perfect title, to go on with the foreclosure proceedings, which was done.’ This statement is based upon an allegation of the bill to the effect that, it being represented to the complainant by the attorney of the company that it would be necessary to foreclose the trust deed, in order to make good the title in the company to the lots, before they could take a mortgage thereon for the installments of redemption money, it was agreed between the parties that the agreement for redemption should not be executed until after the title had been perfected in the company by foreclosure, but in the mean time complainant should execute and deliver to the company her quitclaim deed, and should interpose no defense to such foreclosure. The...