Harney v. Ross

Mr. Justice Scott delivered the opinion of the court: Plaintiffs in error sue out this writ from this court on the theory that the litigation involves a freehold. We have repeatedly held that an ordinary suit in chancery to foreclose a mortgage does not involve a freehold. In the present case, however, the sale of real estate was decreed, not by virtue of the provisions of the mortgage, but in pursuance of the terms of the will of Daniel Harney, deceased. Certain of the .plaintiffs in error were decreed to pay the debt mentioned in the mortgage within a certain period. If they comply with the decree in that respect no sale will be necessary. It is therefore apparent that as to them the situation is not other or different than if the decree was an ordinary decree of foreclosure. As to the plaintiffs in error who were not required by the decree of the circuit court to pay the indebtedness in question, they contend that they own no part of the real estate in question; that they are merely entitled to a portion of the proceeds thereof when sale is made, and that the property to which they are so entitled is personal and not real property. The decree was in accord with this view, but these plaintiffs in error deny the right of the court to decree a sale under the will at the suit of defendant in error. In Nevitt v. Woodburn, 175 Ill. 376, real estate was devised to a trustee, to be by him sold and the proceeds distributed to certain legatees. A bill was filed seeking the removal of the trustee named in the will and the appointment t>f a new trustee and asking that the old trustee convey the title, and complainants prevailed. We held that no freehold was involved as there was no such “adjudication upon the title” as deprived the old trustee of the title and gave it to another; that the requirement that he convey the title held by him was not the result of an adjudication upon the title itself, but of a finding that he had not faithfully performed the duties of the trust.. In the case at bar there was absolutely no adjudication in reference to the title adverse to those plaintiffs in error who were not decreed to pay the mortgage. The only question was whether a sale of the real estate and distribution to them could be rightfully decreed at the suit of Ross. Following the reasoning of tire Nevitt case, we conclude that as to them no freehold was involved. The question was one of procedure, and not one of title. Accordingly the writ will be dismissed. Writ dismissed. Hand, C. J., and Cartwright, J., dissenting.