Ducker v. Wear & Boogher Dry Goods Co.

Mr. Justice Magruder delivered the opinion of the Court: The Appellate Court properly dismissed the appeal on the ground that a freehold was involved. As between the plaintiff below, the attaching creditor, and the defendant, John J. Ducker, no freehold was involved. Where an attachment suit is begun, and the attachment writ is levied upon land, the plaintiff does not seek to get the title to the land, but to establish a lien thereon for the amount of his debt. It is true that, if nothing is done to arrest the suit, it will ultimately result in the loss of whatever title the debtor may have to the land; and yet no freehold is involved in such case, because the debtor may defeat the object of the suit, and prevent a disturbance of his title, by paying the amount of the lien sought to be enforced against it. The statute does not include all cases where the litigation may result in a loss of the freehold, but will not necessarily do so, nor does it include all cases where the freehold is directly affected by the judgment or decree. But here the interpleader and the demurrer thereto present a preliminary question which it is necessary to settle, before it can be determined whether the plaintiff has a right to proceed with the enforcement of a lien against the land. That preliminary question relates to the debtor’s title to the land, and arises out of an issue which necessarily involves a freehold. A freehold is not only involved where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, but also where the title is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue. Malaer v. Hudgens, 130 Ill. 225; Sanford v. Kane, 127 id. 591. In the case of Monroe v. Van Meter, 100 Ill. 347, where an interpleader was filed in an attachment suit by a third person claiming title to the land levied upon, we said: “In an ordinary attachment, where a levy is made upon real estate, it is plain that a freehold would not be involved. But in this case, after the writ had been levied on the real estate involved, appellees, who were not parties to the proceeding, appeared, as they had the right to do, * * * and interpleaded, claiming to own the property. * * * It will be observed, that under the pleadings the issue made and to be determined by the evidence was one of title to the land levied on. * * * A freehold is always involved in an action where the title to the land is presented and in issue between the parties.” The decision in the Van Meter case is precisely applicable to the case at bar, and here, as there, it must be held that a freehold is involved. We do not regard it as material that the issue here presented is one of law rather than fact. The statute makes no such distinction. The demurrer to the interpleader raised the question whether the interpleaders had a present vested interest in the property levied upon, and, as an in-, cident thereto, whether the attachment debtor had a “present or existing leviable interest” therein. Counsel say there is no averment in the interpleader, that the debtor had no freehold estate in the land attached. We think such averment is involved in the allegation, that he had no “present or existing leviable interest” therein. Section 8 of the Attachment Act provides, that the officer “shall without delay execute such writ of attachment upon the lands, tenements * * * of the debtor, or upon any lands or tenements in and to which such debtor has or may claim any equitable interest or title.” (1 Starr & Cur. Stat., 313). As the lands to be levied upon must be those to which the debtor has title, either legal or equitable, a leviable interest in land must be a legal or equitable title to land ;• and to determine whether the debtor has a leviable interest is to determine whether or not he has a title. A freehold has been defined to be “an estate in real property, of inheritance, or for life, or the term by which it is held.” (Gage v. Scales, 100 Ill. 218.) The judgment of the Appellate Court dismissing the appeal is affirmed. Judgment affirmed.