Runner v. White , 60 Ill. App. 247 ( 1895 )

Mb. Presiding- Justice Scofield

delivered the opinion of the Court.

On January 1, 1887, John L. White executed and delivered to Zimri D wiggins two trust deeds on certain real estate, to secure the payment of a certain bond and certain notes, payable to the United States Loan and Trust Company. The bond and notes were assigned to appellant, who filed a bill to foreclose the trust deeds upon the maturity of the indebtedness. A decree,pro eonfesso, was rendered against all of the defendants except Henry D. Kepley and Isaac H. Harper, who filed answers and contended that they were not proper parties to the bill. The court below rendered a decree in accordance with this claim and dismissed the bill as to these defendants.

There are certain facts concerning which there is no dispute. After the execution and delivery of the trust deeds, John L. White, wdio was an unmarried man, conveyed the premises described in the trust deeds to Amanda Berridge, and the latter assumed the payment of the bond and notes secured by the trust deeds. Afterward Kepley bought of Amanda Berridge the right to the possession of the premises, for a valuable consideration, and took the possession thereof through his tenant. Finally Kepley conveyed the premises and delivered the possession thereof to Harper, who mortgaged the premises to Kepley, to secure the payment of the purchase money therefor. Thus far there is substantial agreement between the parties as to the facts of the pase. It is contended, however, on the part of the appellant, that Amanda Berridge and her husband deeded the premises to Kepley about the time of the making of the contract transferring the possession thereof, and that the delivery of the possession was merely for the purpose of perfecting the transfer of the land.

This proposition is denied by Kepley and Harper, who insist that no valid deed was made to Kepley by Amanda Berridge, but that Kepley had an adverse and independent title to the premises, that is, a tax title, in no way connected with the title of John L. White, and that the agreement relative to the transfer of possession was made for the purpose of avoiding a law suit, and that the possession, when obtained, was held under the tax title, and not in privity with JohnL. White or his grantee, Mrs. Berridge. Hence Kepley and Harper contend that they are not proper parties to the bill, while appellant holds the contrary, and insists upon an order against them for the surrender of the possession of the premises at the expiration of the time allowed by law for redemption.

In the view of the case taken by this court, it is not very material whether a valid deed was made by Mrs. Berridge to Kepley or not. In either case Kepley and Harper were proper parties, and their interest, whether an equity of redemption or the right of occupancy, should have been foreclosed. It is beyond question that Harper was in possession of the premises. If this possession was derived from the grantor in the trust deeds, then Harper was a proper party, and his immediate grantor, Kepley, to whom he had mortgaged the premises, was also a proper party. In Richardson et al. v. Hadsall, 106 Ill. 476, it was held that a tenant in possession under the mortgagor was a necessary party defendant and that his interest would not be cut off by the decree unless he was a party. See also, as supporting this proposition, the following authorities: Ohling et al. v. Luitjens, 32 Ill. 23; Dunlap v. Wilson et al., Id. 517; Cutter et al. v. Jones, 52 Id. 84; and Scates v. King, 110 Id. 456.

But it is said that Kepley’s title was by virtue of a tax deed; that it was adverse and independent, and was not derived in any manner from or through the grantor in the trust deeds. If this is the fact, then Kepley and Harper were not proper parties to the bill, and.the same was properly dismissed as to them. Gage v. Perry, 93 Ill. 176; Bozarth v. Landors et al., 113 Id. 181; Parker et al. v. Shannon, 114 Id. 192; Gage v. Mayer, 117 Id. 632.

There is no evidence in the record, however, to show the existence of a tax title. Ho tax deed was offered in evidence. Ho proof was made to show the giving of the notice required to authorize the execution and delivery of a tax deed. The loose and unsatisfactory references to a tax title in the parol evidence can not be regarded as proof of the existence of such a title. And while a court of equity will not assume to determine the validity of an adverse and independent title in a suit for the foreclosure of a trust deed, neither will a court of equity assume the existence of such a title without some competent evidence tending to show the fact. The allegations of the answer can not be held to be conclusive. Some evidence must be offered to establish the fact that the claim is under an adverse title, and when this is made to appear, the chancellor will refuse to proceed further, and require the parties to settle the controversy in a court of law.

But it is said that the burden of proof is on appellant to show that Kepley and Harper did not claim under an adverse title. The burden of proof was indeed on appellant to show, in support of the allegations of the bill, that Kepley and Harper claimed some interest in the premises, by possession or otherwise, derived from the grantor in the trust deeds. This was done. If, then, for the purpose of overcoming the conclusion deducible from this evidence, Kepley and Harper set up an adverse tax title in Kepley, it was incumbent on those defendants to sustain their allegations by evidence, or lose the@benefit thereof. This seems to have been the course pursued in Gage v. Perry, supra, where it appeared from the answer and the evidence introduced imder the (mswer, that Gage did not claim title under the mortgagor, but asserted an independent, adverse title derived from a sale of the premises for the non-payment of taxes.

It is sufficient to state, in conclusion, that Kepley’s interest in the premises, and consequently Harper’s, as far as the same is disclosed by this record, was derived from the grantor in the trust deeds and was subordinate to the trust deeds, and was subject to foreclosure in order that appellant might receive the full relief to which she was equitably entitled. If Harper, as the grantee of Kepley, has an adverse and independent title to the premises, he can assert his right by an action at law.

The decree is reversed, and the cause is remanded, with instructions to the Circuit Court to render a decree in conformity with the views herein expressed.