Lawrence v. Tully

Mr. Justice Stone delivered the opinion of the court: This is an appeal from a decree of the circuit court of Wayne county foreclosing two mortgages, one in the sum of $1371.30 as a first lien and the other in the sum of $494.84 as a second lien. Appellee filed the bill to foreclose a mortgage in the sum of $1200, with interest. Appellant is holder of the smaller mortgage and filed a cross-bill seeking foreclosure of his mortgage as a first lien. He claims that his mortgage is in law and in fact the prior mortgage and that appellee’s mortgage represents a loan made to the mortgagor subject to appellant’s mortgage. Appellee, on the other hand, contends that the. mortgage held by him was given for payment by him of a mortgage in the sum of $1200 given to the Ætna Life Insurance Company prior to appellant’s mortgage. The only question involved in this case concerns the priority of these mortgages. The decree foreclosed both mortgages. No question of title to the premises or the right to foreclose either mortgage is raised. A freehold is not involved in such a proceeding and this court has no jurisdiction on appeal. Farmers State Bank v. Fast, 329 Ill. 601; Becker v. Fink, 273 id. 560; Williams v. Spitzer, 203 id. 505. The cause is therefore transferred to the Appellate Court for the Fourth District of Illinois. , Cause transferred.