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of this writ is to enable the production of a prisoner held in the custody of an officer when it is made to appear that his testimony is material and important in some cause then pending. It is apparent that the testimony of Letukas was not desired on the hearing of this motion, and that his production on the writ of habeas corpus ad testificandum was a mere device to secure his attendance in court and to deprive the superintendent of the reformatory of his custody. Had the writ been properly issued and had Letukas been a necessary witness in the cause his production as a witness pursuant to the writ would not serve to give the court jurisdiction over him as defendant. Produced in this way he stood in the same position, so far as his relationship to the court is concerned, as any other witness. That there is some ground for the charge made by the Attorney General that this is a practice which has grown up in Cook county to enable the State's attorney to exercise the constitutional prerogatives of the executive is evident from the admission of the attorney for respondent, made in oral argument, that it is understood and agreed between him and the State's attorney that Letukas shall never be re-tried for this offense but that when the matter of his indictment comes on again to be heard the State's attorney will enter a nolle prosequi. That the court has no power to take the custody of a convict from the superintendent of the reformatory and transfer him to the sheriff of Cook county has been decided in People v. Kersten, 269 Ill. 597. It was the duty of the superintendent to produce Letukas in response to the writ of habeas corpus ad testificandum but it was also his duty to retain custody of him, and the court had no power to take him out of the custody of that officer. As the writ was improvidently issued, there being no matter pending in which Letukas could testify as a witness, the court should have allowed the motion of the Attorney General to quash the writ.

Under our constitution, one convicted of a criminal offense has the right to sue out a writ of error to have his case reviewed finally by the Supreme Court for any errors of law or fact which may have intervened at the trial. Aside from this, the only relief which may be obtained by anyone convicted of crime is that afforded by section 13 of article 5 of the constitution, which provides that the Governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses, subject to such regulations as may be provided by law relative to the manner of applying therefor.

The demurrer to the petition is overruled and the writ awarded as prayed. Writ awarded.

GUSTAVE A. BECKER, Trustee, et al. Appellees, z's. HENRY J. FINK et al. (THE EAST ST. LOUIS LUMBER COMPANY, Appellant.)

Opinion filed June 22, 1916.

1. FREEHOLD—what is necessary in order that a freehold be involved. A freehold is involved, within the meaning of the constitution and the statutes, only in cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold, or where the title is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue.

2. SAME a freehold not involved if defendant may defeat the suit by making payment. No freehold is involved in a proceeding to enforce liens on real estate if the defendant may arrest the proceeding, defeat the object of the suit and prevent a disturbance of his title by making payment or doing some act to arrest the sale.

3. SAME when a freehold is not involved though decree practically sets aside master's deed. A freehold is not involved in a proceeding to foreclose a mortgage even though the decree practically sets aside a master's deed issued to a purchaser at a sale to enforce a mechanic's lien, by finding that the mortgage is a first lien and ordering the premises to be advertised and sold according to law.

APPEAL from the Circuit Court of St. Clair county; the Hon. GEORGE A. CROW, Judge, presiding.

Keefe & SULLIVAN, (C. P. WISE, of counsel,) for appellant.

FRED B. MERRILLS, and FRED E. MERRILLS, for appellees.

Mr. JUSTICE CARTER delivered the opinion of the court:

On May 10, 1908, Willis F. Carl, being the owner of two lots in a subdivision in East St. Louis, in St. Clair county, Illinois, made a contract with the East St. Louis Lumber Company whereby said company agreed to furnish lumber and mill materials to be used in the construction of three buildings on said lots. May 16, 1908, Carl made to Henry J. Fink, as trustee, three mortgages, each on a separate tract of land and each to secure notes aggregating $2500, maturing three years after date. The East St. Louis Lumber Company furnished the lumber and mill work according to its contract, to the value of $1331.84, which were used in the erection of the three buildings on said lots. On December 31, 1909, the lumber company filed a bill for mechanic's lien against Carl, not making Fink, the trustee, or any of the holders of the notes, defendants to the suit. A decree was rendered in favor of the company for $1441.53, and the property was ordered to be sold by the master in chancery if the amount due said lumber company, with costs of suit, was not paid by June 12, 1910. Payment not being made, the master in chancery on July 7, 1910, sold the property to the East St. Louis Lumber Company. The property not being redeemed, on October 24, 1911, the master made a deed of the property to said company. September 4, 1913, the trustee under the three mortgages and the owners of some of the notes filed this bill to foreclose the mortgages. Intervening petitions were filed by a number of

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other note holders. After the pleadings were settled the cause was referred to a master in chancery to take evidence. He reported that the trustee and the note holders had a first lien on said lots and the East St. Louis Lumber Company had a second lien under the master's deed. On a hearing in the trial court exceptions to the master's report were overruled and a decree was entered in accordance with the findings of the master, that the trustee and note holders under the mortgages had a first lien on the property and that the lien of the East St. Louis Lumber Company was subsequent and inferior to the mortgage liens of the note holders, and that if Carl did not pay the sums found to be due under said notes and mortgages within a certain stated date the property be advertised and sold according to law. From that decree this appeal was prayed by the East St. Louis Lumber Company. The cause has been brought directly to this court, apparently on the ground that a freehold is involved.

It has been repeatedly decided by this court that a freehold is not involved in a suit to foreclose a mortgage. (Carbine v. Fox, 98 Ill. 146; McIntyre v. Yates, 100 id. 475; VanMeter v. Thomas, 153 id. 65; Reagan v. Hooley, 247 id. 430, and cases cited.) A freehold is involved, within the sense and contemplation of the constitution and statutes, only in cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold, or where the title is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue. (Malaer v. Hudgens, 130 Ill. 225; VanTassel v. Wakefield, 214 id. 205.) Where the litigation in a certain contingency may result in the loss of a freehold but does not necessarily do so, a freehold is not involved. (Chicago, Burlington and Quincy Railroad Co. v. Watson, 105 Ill. 217.) Where the question of a freehold depends upon the existence of a lien on land no freehold is involved even though the litigation may result in the loss

of a freehold. may arrest the proceeding, defeat the object of the suit and prevent a disturbance of his title by making payment or doing some act to arrest the sale. (Wachsmuth v. Penn Life Ins. Co. 231 Ill. 29.). In effect, counsel for appellant contend that the decree is erroneous because it does not provide that from the proceeds of sale the East St. Louis Lumber Company should be first paid, and that the bill is really one to redeem and not to foreclose. There is no dispute as to the title. It is really a question of the priority of liens. The scope of the whole litigation is one involving the establishing and enforcement of liens on real estate. In the determination of such questions no freehold is involved. (Chicago and Great Western Land Co. v. Peck, 112 Ill. 408.) Neither is a freehold involved because the decree practically authorizes the setting aside of the master's deed so far as it affects the lien of the trustee and note holders. The setting aside of the deed is a mere incident to the payment of the prior lien and has no bearing on the real controversy between the parties. (Burroughs v. Kotz, 226 Ill. 40.) Manifestly, on the facts in this case the question of title is only incidental to the chief question as to the priority of liens, and therefore, under the authorities already cited, a freehold is not involved. The following among many other authorities uphold such conclusion: Kirchoff v. Union Mutual Life Ins. Co. 128 Ill. 199; Adkins v. Beane, 135 id. 530; Fields v. Coker, 161 id. 186; Richie v. Cox, 188 id. 276; Haas Electric Co. v. Amusement Co. 236 id. 452; Holinger v. Dickinson, 252 id. 123; Chicago Title and Trust Co. v. Tilton, 256 id. 97; Funk v. Fowler, 264 id. 21; Henry v. Britt, 265 id. 131.

No freehold is involved if the defendant

The appeal should have been taken to the Appellate Court. The cause will be transferred to the Appellate Court for the Fourth District. Cause transferred.

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