McIntyre v. Yates, 100 Ill. 475 (1881)

Sept. 1881 · Illinois Supreme Court

100 Ill. 475

John D. McIntyre v. John C. Yates et al.

At Ottawa, September Term, 1881.

Appeal from a trial court to this court—foreclosure of mortgage and reforming the mortgage for misdescription—freehold. The rule that a suit to foreclose a mortgage upon real estate does not involve a freehold so as to give this court jurisdiction on writ of error directly to the trial court, is not at all affected by the fact that it-is also sought in the same suit to reform the mortgage in respect to a mistake in the omission of a tract of land intended to be embraced in the mortgage, and that the question of priority as between several mortgages is involved.

Writ of Error to the Circuit Court of Peoria county.

This was a suit in chancery to foreclose certain mortgages, in respect to which there was a question as to priority. One of the mortgagees also sought to have his mortgage reformed in respect to the omission of a tract of land which was intended to be included therein. About this alleged mistake there was no controversy.

Messrs. Puterbaugh & Puterbaugh, and Mr. N. W. Green, for the defendant in error,

moved the court to dismiss the writ of error, on the ground there is no freehold involved, and therefore the writ should, in the first instance, have been sued out of the Appellate Court.

Mr. B. S. Prettyman, for the plaintiff in érror, contra.

Scholfield, J.:

The bill is filed to foreclose a mortgage. Questions are raised by the answer and by cross-bill with regard to the priority of this and certain other mortgages. We have held in several cases that the mere filing of a bill to foreclose a mortgage does not involve a freehold so as to give this court jurisdiction. The only respect in which this case differs from the other cases is, -that in addition to the bill to foreclose, it is sought to correct a mistake (about which there was no "-controversy) in the mortgage. It is impossible to see how this changes the principle. When the mistake is corrected, its only effect is to extend the mortgage to that which was not before included. The writ of error will have to be dismissed.

Writ of error dismissed.