property taken was not sufficient and adequate. Substantially the same thing may be said of the award of damages to the property not taken. Several witnesses were produced who testified that in their opinion there would be no substantial damages, while others were disposed to place their estimate of the damages at a considerable sum. There being evidence to sustain the verdict, we ought not to interfere unless we are able to see from the entire record that the jury have misconstrued the evidence, or have been actuated by passion or prejudice. It is scarcely necessary to say that nothing of that character appears in this case.

Some other points were made, which we have considered attentively, but which we do not deem of sufficient importance to require separate discussion. We find no substantial error in the record, and the judgment of the county court must therefore be affirmed. Judgment affirmed.

(157 111. 576)

HIBERNIAN BANKING ASS'N ▼. COM-
MERCIAL NAT. BANK
OF CHICAGO.1

(Supreme Court of Illinois. Oct. 11, 1895.) APPEAL JURISDICTION-FREEHOLD-QUIETING

TITLE.

Where, in a suit to remove a cloud on title, the bill alleges title in fee in the complainant, and this is denied in the answer, a freehold is involved, within the meaning of the statute regulating appeals, although the alleged cloud is merely a mortgage. 54 Ill. App. 277, affirmed.

Appeal from appellate court, First district. Bill by the Commercial National Bank of Chicago against the Hibernian Banking Association. Complainant obtained a decree. De fendant appealed to the appellate court, which dismissed the appeal for want of jurisdiction. 54 Ill. App. 277. Defendant again appeals. Affirmed.

Wilson, Moore & McIlvaine, for appellant. J. A. Sleeper, for appellee.

CARTER, J. This is an appeal from the Judgment of the appellate court for the First district dismissing an appeal from a decree rendered by the circuit court of Cook county on a bill to remove cloud from the title to real estate. The appeal was dismissed by the appellate court on the ground that a freehold was involved, and that the appeal should have been taken directly to this court. The appellant also sued out a writ of error from this court to the circuit court, and both proceedings are now pending here. The facts are fully stated in the case pending on the writ of error between the same parties, and will not be repeated. 41 N. E. 919.

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

This court has held that in a suit to remove

a cloud from the title to real estate a freehold may or may not be involved. In such cases the real contention usually concerns that which is said to create the cloud, and not the title of the party complaining, unless it is put on issue by the pleadings. Hutchinson v. Howe, 100 Ill. 11; Miller v. Pence, 115 Ill. 576, 4 N. E. 496. Where the necessary result of the judgment or the decree is that one party gains and the other loses a freehold estate, and also in cases where the title to a freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining and the other losing the estate, we have held that a freehold is involved. Ryan v. Sanford, 133 Ill. 296, 24 N. E. 428; Railroad Co. v. Watson, 105 Ill. 217. In the case at bar no freehold is involved in the controversy as to the nature of the title of appellant, for it is alleged in the bill and admitted in the answer that the warranty deed to Clarke, its president, and which is alleged to constitute the cloud sought to be removed, was a mere mortgage to secure the payment of a debt to appellant; and the only question respecting the lien was whether or not it was still in existence at the time of filing the bill. But the complainant alleged in its bill that it was the owner in fee simple of the property in question, and asked the court to so decree. The defendant denied that the complainant was the owner of the title, and thus complainant's title was put directly in issue, and this was one of the controverted questions in the trial of the cause. While this court has held that on a bill to remove cloud from a title the complainant is not bound to prove title as against all the world (Rucker v. Dooley, 49 Ill. 377), and that an equitable title may be sufficient to support the allegation of the ownership of the fee (Hemstreet v. Burdick, 90 Ill. 444), still, where the complainant alleges a freehold in himself, and this is denied in the answer, and the question becomes a controverted one on the trial, it is plain a freehold is involved in the case. In Wing v. Sherrer, 77 Ill. 200, on a bill to remove cloud from title, it was said that: "Preliminary to any relief in any view of the case, it must be proven complainant is the owner of the real estate in controversy. By the pleadings his title is put directly in issue, and the burden of proof rests upon him to maintain it." See, also, Ritchie v. Pease, 114 Ill. 363, 3 N. E. 897, and Walker v. Converse, 148 Ill. 622, 36 N. E. 202, to the same effect, where the appeals were taken directly from the circuit court to this court. The appellate court did not err in its judgment dismissing the appeal for lack of ju risdiction, and the judgment is affirmed Judgment affirmed.

(157 Ill. 524)

HIBERNIAN BANKING ASS'N v. COMMERCIAL NAT. BANK

OF CHICAGO.1

(Supreme Court of Illinois. Oct. 11, 1895.) MORTGAGE LIMITATIONS-LACHES-EXECUTION.

1. After a sheriff's sale of land, but before the period for redemption had expired, the judg ment debtor conveyed the land to the purchaser, and received from him an agreement reciting the sheriff's sale, and providing that the purchaser should procure a sheriff's deed, and that a settlement should be made by appraising the land, setting off to the purchaser enough of it to satisfy his claims, with interest thereon, and any advances he might make to protect his title, and transferring the residue of the land to the judgment debtor's wife. Afterwards the purchaser obtained a sheriff's deed, and also procured a tax deed of the property, but no appraisement or division of the land was made. Held, that the purchaser by these conveyances merely acquired a mortgage interest in the land.

2. Rev. St. 1893, c. 83, § 18, which declares that the time of a person's absence from the state is no part of the time limited for suit against him, applies even though he has executed a warrant of attorney under which personal judgment could be rendered against him without service of process.

3. Rev. St. 1893, c. 83, § 11, which bars, after 10 years, suit to foreclose a mortgage, does not prevent such suit, even after the lapse of 10 years, so long as the right of action on the mortgage debt is not barred.

4. The fact that the maker of a note leaves the state after making it, and dies out of the state, does not cause a new cause of action to arise against his administrator on his death, but the limitation which ceased to run when he left the state begins again on his death.

5. Laches cannot be relied on as a bar to a defense unless alleged in the bill.

6. A contract whereby a grantee in a master's deed gives the former owner the right to repurchase within a certain time, at a stated price, does not convert the master's deed into a mortgage, where there is no debt which such a mortgage could secure, and the contract expressly declares that the former owner has no interest in the land except the right to repurchase.

Error to circuit court, Cook county; Thomas G. Windes, Judge.

Bill by the Commercial National Bank of Chicago against the Hibernian Banking Association. Complainant obtained a decree. Defendant brings error. Reversed.

Bill in equity to remove cloud. The defendant in error, the Commercial National Bank of Chicago, filed its bill in equity against the

plaintiff in error, the Hibernian Banking Association, in the circuit court of Cook county, to remove as a cloud upon the title to a tract of land in that county a certain warranty deed entered of record, made by one Caulfield to said association. The facts alleged and proved, or admitted by the answer, are substantially as follows:

On April 20, 1875, Bernard G. Caulfield was the owner of the undivided one-half of the land in question, his wife owning the other half, and one William H. Warder claim

nard G. Caulfield, then owing about $8,000 to plaintiff in error for principal and interest upon a promissory note executed in 1872, jointly with one Walker, made and delivered to John V. Clarke, president of the banking association, his warranty deed for said land as security for the payment of said debt. The bill alleges and the answer admits that the deed was a mere mortgage. This deed was not recorded until November 15, 1875. A power of attorney from Caulfield to confess judgment on the note was executed and delivered with the note in 1872. Before this deed was recorded, and in September, 1875, the Central National Bank recovered judgment by confession against Caulfield for $562.04, upon which execution was issued but no sale made. A short time before the expiration of the lien of the judgment in September, 1882, the Commercial National Bank bought and had assigned to it the judgment, and thereafter, on a writ of venditioni exponas, the land was sold, and bought by the latter bank, October 23, 1882, for $800, the amount then due on the judgment. Before the purchase of this judgment, the Commercial Bank had become a creditor of Bernard G. Caulfield to about $5,000, and had also purchased certain tax titles on the land in question. On March 1, 1883, Bernard G. Caulfield and Laura, his wife, conveyed all their and each of their interests in the land in question, with other tracts, to said Commercial Bank, for the expressed consideration of $23,000, and as a part of the transaction the following contract was made between the parties:

"This agreement, made this first day of March, A. D. 1883, between the Commercial National Bank of Chicago, Illinois, party of the first part, and Bernard G. Caulfield and Laura Caulfield, parties of the second part, witnesseth, that whereas, the said parties of the second part are indebted to said bank in the aggregate sum of $23,000, bearing interest from the 1st day of January, A. D. 1883, at 6 per cent., about one-half of which amount is for taxes advanced for said Laura Caulfield, together with the sum of $500 in cash, paid to her by said bank at the date of the execution of this agreement, and the remainder of said sum of $23,000 being a personal debt of the said Bernard G. Caulfield to the said

bank; and whereas, for the purpose of securing the payment of said aggregate sum, the said parties of the second part conveyed to the said bank, by their deed of this day, all their right, title, and interest in and to blocks 1, 2, 3, and 4 in Warder's subdivision of outlot 32 of the School Trustee's subdivision in section 16, in township 38 north, range 14 east of the third principal meridian, in Cook county, Illinois, the undivided two-thirds of which lands are the separate property of the said Laura Caulfield; and whereas, on the

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

chased the said lands on execution sale against said Bernard G. Caulfield, and holds the sheriff's certificate of said purchase, on

which, after the expiration of 15 months after the date of said sale, it will be entitled to a sheriff's deed in pursuance thereof, if no redemption shall be made; and which is only a sale and purchase of the interest of said Bernard G. Caulfield in said lands: Now, it is agreed that, as soon as the said period of redemption shall expire on said execution sale, the said bank shall, if no creditor of said Bernard G. Caulfield shall redeem, procure a sheriff's deed of the said interest of Bernard G. Caulfield upon its said certificate, and then a settlement shall be had upon the following basis: To the said sum of $23,000, and interest thereon at six per cent. from January 1st, 1893, to date of settlement, shall be added any further advances the said bank may make hereafter to protect the title to said property by payment of taxes and assessments or otherwise, with interest at six per cent. from the date of advance to the date of settlement, and the aggregate shall be paid thus: The lots in said blocks shall be appraised at their fair cash value by two appraisers, one to be chosen by each of the parties hereto, and, if they cannot agree upon cash value, then they shall select a third party, and the appraisal of a majority of the three shall be binding upon the parties hereto. All such appraisers shall live either in the city of Chicago or in the towns of Hyde Park or Lake, and own unincumbered real estate in some portion of said territory; and before making such appraisal such appraisers shall each take an oath to make a true and fair appraisement of said lots according to their best judgment and ability, after going upon such lots, and personally examining the same. After the appraisal of said lots in the manner aforesaid, the two said appraisers, if they can agree,-if they cannot agree, then a majority of the three,-are hereby authorized to lay off or assign to the said bank so much of the said lands as may be equal in value to the whole amount due said bank as aforesaid; but in doing so they shall divide the land fairly, and in such manner as to protect the rights and interests of all concerned. If such appraised value of all of said lots shall not equal the amount so due said bank, then the said Bernard G. Caulfield will pay the residue on demand to said bank; but if, after the assignment of so many of said lots as shall, at their said appraised value, equal the whole amount due said bank as aforesaid, there shall remain any other lots, all such remaining lots said bank shall forthwith convey by quitclaim deed to the said Laura Caulfield, or to such persons as she may direct. Should the said execution sale be redeemed from, the rights of the parties hereto as respects each other shall remain unchanged, but it shall in such contingency become a matter of mutual agreement whether an immediate division of said lots shall be made, or further steps taken to perfect the title to said lots before a division: provided, however, an appraisal and division in the manner above set forth will not be delayed beyond the first day of January, 1885.

Should any of the said lots in the meantime, before any appraisal and division, be condemned for any public uses, the moneys that may be awarded shall be received by said bank to apply upon its said debt: provided, that said bank shall not accept any sum for damages occasioned by the taking of any of said property for public uses unless the amount thereof shall be satisfactory to the parties of the second part, or unless such damages are ascertained by a jury and competent court. Given under our hands and seals this 19th day of March, A. D. 1893." Signed in duplicate.

No appraisement was made under this contract as contemplated by it, and there was no setting apart to the bank, or conveyance to Laura Caulfield, of any of the lots, as mentioned in the contract. The land not having been redeemed, the Commercial Bank obtained a sheriff's deed for the undivided interest of Bernard G. Caulfield on January 24, 1884. Long prior, and in April, 1874, said Warder, who claimed an equitable interest in the land by virtue of his contract aforesaid, filed his bill in equity against the Caulfields and one Waller to enforce his interests, and afterwards, in January, 1887, the Commercial Bank intervened in Warder's suit, and filed its bill in the nature of a supplemental and cross bill against the Caulfields, Warder, and others, and afterwards, in January, 1890, obtained a decree that the title was vested in said bank, subject to the equitable rights of Warder, with the right of redemption in Laura Caulfield alone. The decree in that case further found, in pursuance of the allegations of the cross bill, that there was then due to said Commercial Bank from the Caulfields on the indebtedness mentioned in the agreement of March 1, 1883, and for moneys since advanced for taxes and otherwise to protect the title to the property, with interest thereon, $27,000, and that Laura Caulfield, in redemption of the premises under the deed and agreement of March 1, 1883, should pay the bank that amount and interest in 90 days. Said Laura did not, however, pay the $27,000, and under a subsequent order of the court the land was sold by the master and purchased by the Commercial Bank, June 12, 1890, for $27,873.50. No one redeemed, and the master conveyed the land to the bank. Before this last sale, and on December 20, 1887, Bernard G. Caulfield died intestate in Deadwood, Dak., where he had resided from some time in 1878 until his death; the suit having been revived against his heirs before the final decree. Warder released to said Laura all of his interest in the lands in controversy before such decree. Neither the Hibernian Banking Association nor Clarke was made a party to that suit. June 10, 1891, the Commercial Bank and Laura Caulfield entered into a written agreement respecting said land, in which it was recited that whereas, in a bill lately pending in the circuit court, in which William H. Warder was complainant and said Laura Caulfield

and others were defendants, and a bill in the nature of a supplemental and cross bill of the Commercial National Bank, it was decreed that the lands in controversy in that suit (and hereinafter described) should be sold to pay the amount found due to the bank; also reciting the sale of said premises under said decree for the sum of $27,873.50, and that the time for redemption is about to expire; and, in consideration of the premises the Commercial National Bank agreed with Laura Caulfield that, if she should fail to redeem said lands within the time allowed by law, and in case the bank shall become possessed of the title to said lands in fee simple by virtue of said decree and master's sale, the bank will, after it becomes the owner of the title, sell and convey such lands to said Laura Caulfield, subject to any adverse claim to or lien upon them, upon the payment to it, within one calendar month thereafter, of the following sums: $35,000 and interest thereon at 8 per cent. from June 12, 1891, all moneys that the bank might pay out for taxes, assessments, and other charges, and also other items therein specifically set forth; and time was made the essence of said contract; and, on the failure of Laura Caulfield to make payments as therein provided, that said contract should no longer be binding, but should be null and void. In such case, however, the bank would manage, hold, and from time to time, as it might have opportunity, and be reasonably able, sell and dispose of the property at its own Judg. ment and discretion, and upon such terms and conditions and for such prices as it might seem proper, and deduct and reserve to itself all of the proceeds of such sales necessary to pay the various sums before recited, with 8 per cent. interest; and, if any surplus remained in its hands after paying the said sums therein provided, that it would pay and deliver the remainder and surplus to said Laura Caulfield. In consideration thereof the said Laura Caulfield released and quitclaimed all right, title, and interest which she had in and to said lands, save as she had acquired them by said agreement, which it was agreed was a right to repurchase only, and that the agreement did not continue any interest in her whatever, but that her failure to redeem was to be an absolute abandonment and forfeiture of all her right, title, and interest in said land of every nature and kind.

The master reported the evidence and his conclusions to the court, recommending that a decree be entered dismissing the bill for want of equity. But the trial court entered a decree sustaining complainant's bill, and decreed the relief prayed. The Hibernian Banking Association sued out this writ of error to reverse that decree. It also appealed to the appellate court, where the appeal was dismissed for want of jurisdiction on the ground that a freehold was involved.

CARTER, J. (after stating the facts). In Hibernian Banking Ass'n v. Commercial Nat, Bank, 41 N. E. 918, on appeal from the appellate court, we held that a freehold was involved in this controversy, and affirmed the judgment of that court, dismissing the appeal thereto taken. It is unnecessary to repeat the reasons here for that decision, but the conclusion is that the writ of error was properly issued to bring the record of the circuit court directly to this court for review on the ground that, the complainant's claim of the title in fee being put in issue by the pleadings and controverted on the trial, a freehold is involved in the case.

If the Commercial National Bank became the owner in fee of the lands in question by the sheriff's deed of January 24, 1884, the lien of the Hibernian Banking Association, created by Caulfield's deed to Clarke, absolute in form, but in fact given as a mere security for a debt due the banking association, was cut off, and became a cloud on the title of the Commercial Bank. If, however, as insisted by plaintiff in error, the sheriff's deed, taken in connection with the agreement between the Caulfields and the Commercial Bank, and the deed of the Caulfields to said bank, of March 1, 1883, must be construed to be a mortgage, then it is plain that the lien of plaintiff in error created by the deed to Clarke was not lost, and the title of defendant in error was not clouded thereby. It appears to us very clear that the Commercial Bank did not obtain absolute title to the property by the sheriff's deed. On March 1, 1883,-about five months after the sheriff's sale, and about ten months before obtaining the sheriff's deed,-the Commercial Bank took from the Caulfields a deed for the property, and at the same time entered into an agreement reciting that the grantors owed the grantee $23,000, with interest at 6 per cent., to be computed from January 1, 1883, and had by said deed conveyed the property, one-third of which belonged to Mr. Caulfield and two-thirds to Mrs. Caulfield, to the bank to secure said indebtedness. The agreement also recited the sheriff's sale of October 23, 1882, of Mr. Caulfield's interest in the property, and that, if no redemption should be made within 15 months, the bank would be entitled to a sheriff's deed. It then provided that the bank should procure the sheriff's deed, and a settlement should be made by allowing the bank the $23,000 and interest, and all advances made to protect the title, with interest thereon, and the aggregate should be paid by having the lots into which the property was divided appraised, the appraisers to be appointed by the parties, and a sufficient number of such lots set off to the bank at their appraised value to pay its debt, and the remaining lots should be conveyed to Mrs. Caulfield, or to such person as she should direct. If the lots at their appraised value should not be sufficient to pay the debt, then Mr. Caulfield was to pay the deficiency. It was proved that the amount paid by the bank for the property at

the sheriff's sale entered into and formed a part of the indebtedness of $23,000 mentioned in the agreement. No appraisement of the lots, or conveyance of any of them to Mrs. Caulfield, was ever made. While it appears that the Commercial Bank took possession, after obtaining the sheriff's deed, paid taxes, and purchased tax titles, the effect of the evidence is that it never treated its title as adverse to Caulfield. On the contrary, by its accounts, and by its intervention in the Warder suit, where by cross bill it sought to foreclose its lien on the property as against the Caulfields, and to have the amount of its debt as it then stood adjudicated, and the property sold to pay it, and by its purchase of the property at the master's sale under the decree in the Warder suit, which decree preserved the equity of redemption of Mrs. Caulfield in the whole property, the bank in effect treated its various titles as mere security for its demands, and in no wise as an absolute title in fee hostile to Caulfield. The fact that the equity of redemption was preserved to Mrs. Caulfield, and not to Mr. Caulfield, did not change the effect of the instruments from that of a mortgage to that of a title in fee simple. They still constituted a mere lien to secure the indebtedness specified. The bank could not treat the sheriff's deed as a complete divestiture of Mr. Caulfield's title, and still hold against him as an indebtedness the amount it had paid for his interests at the sheriff's sale, with interest thereon, and as being secured by its lien on the land acquired by the deed and agreement of March 1, 1883. We are inclined to agree with the conclusions of the master in his report to the court below that the legal effect of these transactions was that the Commercial Bank redeemed the interest of Mr. Caulfield in said lands from the sheriff's sale for him, and charged against him the moneys paid in making such redemption, and that the certificate and sheriff's deed became merged in the general claim of the bank, and, together with the agreement and deed of March 1, 1883, constituted its lien on the property to secure the repayment of its debt.

We cannot

see how the moneys paid by the Commercial Bank for Caulfield's interest at the sheriff's sale could be treated, as the same was treated, as an indebtedness of his to the bank, without treating it as money advanced by the bank for him to redeem from the judgment sale. Had the Caulfields paid the whole demand of the bank after the bank received the sheriff's deed, without carrying out the provisions respecting the appraisement and division of the property (and that provision was never carried out), such payment would have amounted to a redemption of the whole property, and equity would have compelled a restoration of the title as it stood before the sale. It may be that, for laches of the banking association, or other equitable causes, the lien of the plaintiff in error under its deed to Clarke became postponed to that of the Commercial National Bank, but we are of the opinion that it was not cut off by

the sheriff's deed operating as vesting title in fee simple absolute in said bank.

It is also contended by defendant in error that plaintiff in error has lost its mortgage lien by reason of its failure to foreclose the same within 10 years after the right of action accrued, under the eleventh section of the limitation act, which provides that: "No person shall commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a mortgage, unless within ten years after the right of action, or right to make such a sale accrues." Rev. St. 1893, c. 83. And it is said that, inasmuch as Caulfield's interest in the land had passed to defendant in error, if not by the sheriff's deed, then by the master's sale and deed under the decree in the Warder suit, and inasmuch as plaintiff in error had from Caulfield a power of attorney to confess judgment, and inasmuch as the court retained jurisdiction to foreclose the mortgage of plaintiff in error, notwithstanding Caulfield's departure from the state, no reason remains why the exception contained in section 18 should apply, or the time of his absence from the state be deducted; and that, plaintiff in error having commenced no action to foreclose or enforce its lien within 10 years after the right to do so accrued, when it might have done so at any time, it is now barred from such right by said eleventh section; and that it has become immaterial to inquire whether the indebtedness was barred or not. We have seen that by the agreement and deed of March 1, 1883, those instruments and the sheriff's deed became in the hands of defendant in error a mere mortgage; and while it was adjudged in the Warder suit, when the decree was rendered in 1890, that Caulfield's title had vested in defendant in error under the sheriff's deed, such decree could not affect the lien of plaintiff in error, it not being a party to the suit. But, aside from this line of argument, it has been repeatedly decided by this court that the mortgage is a mere incident of the debt, and is barred when the debt is barred, and not before; and that the rule remains the same since the enactment of section 11. Schifferstein v. Allison, 123 Ill. 662, 15 N. E. 275; Von Campe v. City of Chicago, 140 Ill. 361, 29 N. E. 892, and cases there cited. It follows, therefore, that if Caulfield's indebtedness to plaintiff in error, secured by the mortgage, was not barred, the mortgage was not barred. While it may be true that the reason for the exception created by section 18 of the statute does not exist in full force when applied to this case, inasmuch as the absence of Caulfield from the state did not prevent foreclosure of the mortgage, or the obtaining of a personal judgment against him by confession prior to his death, still, as the case comes within the express language of the exception, we cannot assume the province of the legislature, and say that the exception ought not to apply,