Eddleman v. Fasig

Mr. Justice Hand delivered the opinion of the court: In the case of Lynch v. Jackson, 123 Ill. 360, which was a bill to redeem, framed on the theory that a deed made by Lynch to Jackson, though absolute in form, was nevertheless a mortgage, an appeal direct to this court was dismissed, and the court say (p. 361) : “On the theory on which the bill is framed,—that the deed from complainant to Jackson is only a mortgage,—it follows the title to the mortgaged premises is not involved in the litigation, for the obvious reason the payment of the indebtedness secured discharges the mortgage lien, and the appeal should have been taken, in the first instance, to the Appellate Court.” This reasoning was followed in Kirchoff v. Union Mutual Life Ins. Co. 128 Ill. 199, which was a bill seeking a decree, as in this case, declaring a certain deed absolute on its face to be but a mortgage and that appellant be allowed to redeem, and the appeal was dismissed. In Adamski v. Wieczorek, 181 Ill. 361, the foregoing cases were cited with approval, although it was contended that they were not in point for the reason that the decree would necessitate the setting aside of a deed made by the grantee in the deed alleged to be a mortgage, to a third person ; but the court held that the deed to the third person was made pending the litigation, and that when the court found and decreed that defendant in error was entitled to redeem, the mere fact that the deed to the third party was set aside as a cloud on the title did not change the character of the bill or the relief sought. The setting aside of the deed was a mere incident to the right of redemption sought in the bill, and it had no bearing on the real question in controversy between the parties. It is contended in this case that appellant had actual notice of the nature of the transaction between Smith and her grantor, and the trial court so found. In the Adamski case, supra, the notice to the subsequent purchaser was by Us pendens. In this case it was actual notice. Aside from the nature of the notice we are unable to distinguish the cases, and are of the opinion that under the authorities above cited this court has no jurisdiction to entertain this appeal. The appeal must be dismissed. Appeal dismissed.