Ennis v. Wolff

Mr. Justice Ricks delivered the opinion of the court: Prom the foregoing statement it is apparent that the intervening petition of appellant sought to have adjudicated both his right to possession and ownership of the property in controversy as an adjunct to and a part of the foreclosure suit, which was a proceeding had, and then pending, in chancery. His claim was not in support of, but adverse to, the title of the mortgagors, and he predicated his title and right to possession upon an alleged sale under execution. A court of chancery is not a proper forum for the litigation of questions involving the mere legal title between opposing claimants, nor is such procedure permissible in a foreclosure suit in equity. (Gage v. Perry, 98 Ill. 176; Bozarth v. Landers, 113 id. 181.) A sale of the premises had already been decreed and made, and the receiver was in possession under the deficiency decree. The full record of the foreclosure proceeding is not incorporated in the record now before us, but the averment of the bill is that the receiver had had possession of the premises for two years and that he had paid the deficiency. Be that as it may, the consideration of appellant’s interest in the rent was in no way material or necessary to a proper disposition of the foreclosure suit, but was simply the assertion of appellant to the right of possession and title to said property and to have the rents paid to him, and as soon as the nature of the bill was made to appear to the court it should have been dismissed. (McAlpine, Polk & Co. v. Zitzer, 119 Ill. 273.) A demurrer was interposed, which should have been sustained but was not, and on final hearing the court dismissed appellant’s bill for want of equity. The decree of the circuit court dismissing the bill was proper, but the finding of the court, in that decree, that appellant had no title to the lands in question and was not entitled to their possession was wholly unnecessary and should not have been entered. The decree of the superior court is modified to the extent that it makes any declaration against the title or interest of appellant further than his right to maintain the petition in question, leaving the rights of appellant under his alleged title to the mortgaged premises, whatever they may be, to be asserted in any court of law as a matter of defense or attack, as he may be advised, and in all other respects the decree of the superior court is affirmed. Decree modified and affirmed.