Hess v. Bartmann

Mr. Chief Justice Farmer delivered the opinion of the court: Appellant, in February, 1922, executed to appellees a deed purporting to convey to them for $15,000 certain real estate in the city of Elmhurst, DuPage county, Illinois. He filed the bill in this case to have the deed declared a mortgage and for the right to redeem. The bill alleges the deed was given to secure $15,000 advanced by the grantees to pay indebtedness of the grantor in that amount, part of which was secured by mortgage on the premises, part of it was in judgment, and a smaller amount for which appellant’s unsecured notes were held by his creditors. The bill alleges it was agreed between him and the grantees that if he should within. eighteen months re-pay to the appellees $15,000, also the further sum of $1000, and pay them $140 per month for the use of the money until the $16,000 was paid, then appellees would re-convey the premises to appellant. Appellees answered denying the deed was made as security for a loan and alleged the conveyance was made in consummation of an unconditional purchase. On a hearing the court dismissed the bill for want of equity, and this appeal brings the case to this court for review. The theory upon which the appeal is brought direct to this court is that a freehold is involved. There is no other question raised by the assignment of errors which would give this court jurisdiction. We have held a suit to declare a deed a mortgage and to redeem does not involve a freehold. Hajicek v. Goldsby, 309 Ill. 372, and cases there cited; also Reagan v. Hooley, 247 id. 430, and cases cited in the opinion. The case will be transferred to the Appellate Court for the Second District. , , Cause transferred.