Gunning v. Sorg

Per Curiam : The appellees Sorg applied for and obtained leave to file in this court a certified copy of the brief and argument filed in behalf of the appellant, Gunning, in the Appellate Court, for the purpose of establishing that the appellant, who was plaintiff in error in the Appellate Court, did not in that court present any question touching the sufficiency of the evidence to support the decree or relating to the necessity for or lack of a certificate of evidence in the case. The brief and argument filed in pursuance of this notice support this contention of the appellees Sorg. Counsel for the appellant, in opposition, have, by leave given, filed the affidavit of Francis C. Russell, one of their number, who therein states that he argued the case orally in the. Appellate Court, and in such oral argument insisted that because of the lack of a certificate of evidence in the record and the insufficiency of recitals in the decree nothing could be considered as established, as a matter of fact, except such matters as appeared by way of admissions in the pleadings. Rule 15 of this court provides that if it becomes important to know what questions were raised and submitted to the Appellate Court for decision, certified copies of the briefs and argument filed and used in that court may be filed in this court after leave granted. The proper construction of this rule would exclude a resort to affidavits as a means of determining what points were brought to the attention of the Appellate Court for decision. It appearing from the brief and argument filed in behalf of the appellant in the Appellate Court that no question was mooted in that court relative to the sufficiency or insufficiency of. the evidence to support the decree, or that the decree should be reversed for the alleged want of a certificate of evidence and alleged insufficiency of the recitals of fact in the decree, those contentions cannot be urged in this court for the first time. Sutter v. Rose, 169 Ill. 66; Abend v. Endowment Fund, 174 id. 96. We think the court properly permitted the lessor, Sorg, to interplead in the foreclosure proceeding instituted by Phillips. He had then pending an action in forcible detainer, but the court had, through a receiver, taken possession of the premises. The leased property was in custodia legis. The action in forcible detainer had been instituted before the appointment of the receiver, but any attempt to enforce a judgment entered in the cause authorizing the lessor, Sorg, to interfere with the possession of the receiver would have been adjudged a contempt of the court which appointed the receiver. (St. Louis, Alton and Springfield Railroad Co. v. Hamilton, 158 Ill. 366.) Equity would afford Sorg a remedy to cancel the deed of trust which Gunning had executed to Phillips without the knowledge or consent of Sorg and in violation of the conditions of the lease, and this equitable relief might well be sought through the medium of an intervening bill filed in the proceeding in equity which Phillips had instituted to foreclose his mortgage. Moreover, Phillips voluntarily amended his bill and made Sorg a party defendant thereto, and his standing in this proceeding was thereby clearly established. The chancellor heard the case upon the issues made under the original bill and the intervening petition, and determined that the equities were with the intervening petitioner and that the bill filed by the appellee Phillips for foreclosure of his mortgage was without equity and should be dismissed. This finding was correct, for the reason that the trust deed which Phillips sought to foreclose had been executed in violation of the condition of the lease, to the prejudice of the rights of the lessor. The attempt to cause the rents and issues of the leased premises to be devoted, through the medium of the receiver, to the payment of the indebtedness which the unauthorized deed of trust had been given to secure, was unjust and inequitable as against the lessor, Sorg. Sorg was entitled to a decree canceling the trust deed; declaring that he was entitled to have the amounts which the receiver had in his hands, paid to him in discharge pro tanto of the unpaid installments of rent; that the receiver should be discharged and the bill for foreclosure dismissed at the cost of appellee Phillips. Phillips, with the consent and perhaps the connivance of' Gunning, having brought the premises into the control and subject to the disposition of the court of equity, they made an offer in open court for the purpose of setting aside the forfeiture that had been declared. The court entertained the offer, and by the first decree ordered that upon the performance of the same the lease should be adjudged to be and remain in full force and effect, but upon a failure to comply with the conditions therein specified within the time limited the lease should be declared to be ended and determined, and Sorg should be let into the possession of the premises and the receiver should surrender possession to him. Phillips and Gunning failed to comply with the conditions offered them by that decree, and by the supplemental decree the trust deed and lease were declared null and void, and it was ordered that the receiver, or any of the parties to the cause in possession of the premises, should deliver possession to Sorg. It is urged that the latter decree was wrong, for the reason that a court of equity will not enforce a forfeiture. It is familiar doctrine that a court of equity will not actively interfere to enforce a forfeiture. (i Pomeroy’s Eq. Jur. sec. 459.) But it is equally well settled that when a court of equity has acquired jurisdiction over a cause for any purpose it may go on to a complete adjudication, and may establish purely legal rights and grant legal remedies which would otherwise be beyond the scope of its authority. In such a case it will not remit a party to his remedy at law, but will decide all issues and make a decree granting full relief to all the parties. (Ibid. 181, 236.) In suits in equity where the right of possession of real property is involved, it is not only proper, but the duty of the court, on the completion of the suit, to put the successful claimant in possession of the premises. (Harding v. LeMoyne, 114 Ill. 65.) Although a bill in equity cannot be maintained merely for the enforcement of a legal right, if the controversy contains any equitable feature which authorizes a court of equity to take cognizance, that court will retain jurisdiction for all purposes and will establish merely legal rights and grant legal remedies. (Stickney v. Goudy, 132 Ill. 213.) In Link Belt Machinery Co. v. Hughes, 195 Ill. 413, it was said that a court of equity having by its receiver taken possession of appellee’s property in that case, and having, by its orders taken his rights under its protection, was bound to protect him without driving him to a suit at law to enforce such rights. That rule applies here. Phillips, the complainant in the original bill, invoked the jurisdiction of a court of equity for the foreclosure of the trust deed and prayed for the appointment of a receiver to take possession of the premises. Gunning entered his appearance and expressly consented to the appointment of the receiver. The receiver was appointed and the property was thereby brought under the control of the court to be disposed of according to the rights of the parties, and the court, having acquired jurisdiction, might then adjudge the rights of all parties to the suit although it involved the granting of legal remedies. (17 Ency. of PL & Pr. sec. 766.) The receiver did not hold the property for Phillips or for Gunning or for any other person, but for the one who in the end should show himself entitled to it. The property having legally come into the possession of the receiver, it could not be interfered with by any person claiming an interest in it without leave of the court, but Sorg could either ask the court for leave to assert his title to the property in the possession of the receiver by a suit at law or to have it determined in the receivership. The court, in its discretion, could either try the case itself and determine his right to the property or permit the question to be tried in a court of law. (17 Ency. of PL & Pr. 775-792.) The court determined to try the question itself and came to a correct conclusion as to the rights of the parties. The lease had been forfeited, and Sorg was entitled to possession of the property when possession was taken by the court through its receiver. When the receivership came to an end it was within the power and duty of the court to determine to whom the possession should be surrendered by the receiver, and having ascertained that Sorg was entitled to it, it would not be in accordance with equity to order it returned to one of the parties who had no right, legal or equitable, to it. We do not think the court was prevented from awarding Sorg his legal rights by the fact that there had been a forfeiture of the lease. On the contrary, this court has approved a decree granting relief in a case not distinguishable, in principle, from this. In the case of City of Belleville v. Citizens’ Horse Railway Co. 152 Ill. 171, the city of Belleville had, by ordinance, granted to the railway company the privilege of laying its tracks and operating the same along certain streets in said city, and the ordinance granting the privilege provided for a forfeiture of the rights of the company on a failure to operate the road in a certain way and to a certain extent. The company failed to comply with the conditions, and an ordinance was passed declaring a forfeiture and revoking the rights and privileges of the company. A receiver being in possession of the tracks of the street railway company, an intervening petition was filed in the suit, averring that the company had not complied with the conditions upon which the right to occupy the streets was granted and that an ordinance had been passed which declared a forfeiture, and asking leave to remove the tracks, turn-outs, switches, etc., from the streets. The court ordered the company to take up the tracks within sixty days, and on a failure authorized and empowered the city to remove them. The Appellate Court reversed the decree and ordered the intervening petition stricken from the files. This court reversed the judgment of the Appellate Court and affirmed the decree of the circuit court, holding that the circuit court merely found the facts, and granted the relief that the city was justly and equitably entitled to receive. It was held that, inasmuch as the property was under the jurisdiction and in the care and custody of a' court of chancery, the petition was entirely proper and absolutely necessary. It was also said that the court did not assume to decree a forfeiture of the license from or contract with the city; that the license to occupy the streets had been abrogated by the act of the company in failing to comply with the conditions, and the petition merely stated the facts in regard to the ordinance granting the right, the default of the company with respect to the conditions and the passage of the repealing ordinance. If this decree is the enforcement of a forfeiture that one also was. This case also has the added feature that the receivership had come to an end and the property was to be disposed of and the possession surrendered by the receiver to the party who had shown a right to it. It is true that if a bill had been filed by Phillips and Gunning to relieve against the forfeiture of the lease and relief had been granted upon compliance with equitable terms, and there was nothing else in the case, it would have been proper to decree that upon non-compliance with the terms they should take nothing by the decree and the bill should stand dismissed at their cost. That is not the case here, but the court had taken possession of the property by its receiver and Sorg had been compelled to come into the court to assert his right. The lease had been forfeited and the possessory action of forcible detainer had been begun. While Sorg might have prosecuted that action to judgment he could have had no benefit of the judgment, since he could not interfere with the possession of the receiver. When he set up his right to possession, the fact that Gunning and Phillips made an offer which they did not perform could not affect his right to relief, nor compel the court to restore the property to them and leave Sorg to enforce his rights in another action. The judgment of the Appellate Court is affirmed. Judgment affirmed.