Gage v. Board of Directors , 8 Ill. App. 410 ( 1881 )

Bailey, J.

The case of Gage v. Perry, 93 Ill. 176, is decisive of this case. That was a bill to foreclose a mortgage, and Gage was made a party defendant, upon the allegation that he claimed some interest in the mortgaged premises as purchaser, mortgagee, judgment creditor or otherwise, but that such interest, if any there was, had accrued since, and was subject to the lien of the complainant’s mortgage. Gage answered the bill, setting up an adverse legal title to a portion of the mortgaged premises by virtue of a tax deed, and' expressly denying that his interest in the property was subject to the lien of the mortgage. The case was heard on bill, answer, replication and proofs, and a decree rendered foreclosing Gage’s interest in the premises. This decree was reversed, it being held that an adverse claim of title in no way connected with the title of the mortgagor, was not a proper subject of consideration in a suit to foreclose a mortgage, and when it was disclosed by the answer of the defendant and the proofs that such was the character of his claim, he should have been dis. missed from the suit.

In the present case, the nature of the interest claimed by Gage is set out by the complainants in their bill, so that it sufficiently appears from the face of the bill itself that Gage claims an interest in a portion of the premises in question adverse to the title of the complainants, and in no way connected therewith; and consequently, upon the doctrine of the case of Gage v. Perry, the bill should have been dismissed as to him.

It is suggested, however, that this court has no jurisdiction ol the case, for the reason that it involves a freehold, and the case of Gage v. Bailey, 7 Bradwell, 619, is cited in support of that position. A freehold cannot be said to be involved in a case in which such title is not and cannot be made a proper subject of consideration. The freehold claimed by Gage was not properly before the court below, and that court had no authority in this proceeding to investigate it or set it aside. The error was not in holding upon the facts confessed by Gage’s default, that the tax deed was void, but in taking jurisdiction of and assuming to pass upon that question at all. So this court, in entertaining jurisdiction of the case, is not called upon to pass upon the validity of Gage’s legal title, but merely to decide a question of practice. In our opinion, then, a freehold is not involved in the case within the meaning of the statute.

For the reasons above stated, the decree, so far as it relates to the title and interest of Gage in the lands in question, will he reversed, and the cause remanded to the court below, with instructions to enter a decree dismissing the bill as to said Gage.

Judgment reversed.