McCarty v. Reeve, 8 Ill. App. 44 (1881)

April 6, 1881 · Illinois Appellate Court

8 Ill. App. 44

Robert McCarty v. Tracy Reeve.

1. Bill to foreclose a mortgage and correct a mistake in description, involves a freehold. — Appellant Robert McCarty executed a mortgage to the appellee; by a mistake of the person who drew it'an eighty acre tract was described as being in section 22 when it should have .been section 28, upon discovering the mistake the mortgagor conveyed the eighty-acre tract to his son one of the appellees. A bill was filed to foreclose the mortgage and correct the mistake: held, that a freehold was involved and the appeal should have been taken to the Supreme Court.

Appeal from the Circuit Court of Lee county; the Hon. William Brown, Judge, presiding.

Opinion filed April 6, 1881.

Bill filed by the appellee against the appellants to correct a mistake in a mortgage and for foreclosure.

It is alleged that by the mistake of the scrivener one eighty-acre tract was described as being in section twenty-two, when it should have been section twenty-eight..

That the mortgage was made by the appellant Robert McCarty to the appellee, and that after said mortgage was made, the said Robert McCarty discovering the mistake, deeded said eighty-acre tract to his son William P., the other appellant.

That said deed was without consideration and was executed to defraud the complainant. ■'

The prayer of the bill is that said deed to William. P. may be decreed to be null and void as to the rights of the complainant, that said mortgage may be reformed and declared as a first lien upon all the mortgaged premises including that part claimed by William P. under said deed.

William P. answered the bill, denying that any mistake was made, and if made, that he had any notice thereof when he bought the land; denies that his deed was without consideration or made to defraud complainant; avers payment of full value for the land, possession in himself under said deed from his father, and claims to be owner in fee.

Robert McCarty also answered the bill, denying the material allegations thereof. Upon hearing, the court found the bill sustained by the proofs, reformed, and foreclosed the mortgage and decreed the deed from Robert McCarty to William P. void. Prom this decree this appeal is taken.

Mr. Thomas P. Duffey and Messrs Dixon & Bethea, for appellants.

Mr. A. K Truesdell, for appellee.

Pillsbury, J.

The title to the eighty-acre tract claimed to be omitted from the mortgage, was in William P. McCarty in fee. The records of the county did not disclose any lien upon it at the time of his purchase.

The direct operation of the decree is to deprive him of his fee simple title, by subjecting it to the title of the mortgage. A freehold is thus involved in this cause, and the appeal should have been taken to the Supreme Court. We have no jurisdiction to determine the question whether the decree of the court below, was proper in depriving the said William P. of his fee in the land.

The appeal must therefore be dismissed.

Appeal dismissed.