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The order of the board of review confirming the assessment of the net receipts of appellant is reversed and the assessment annulled and set aside.

Assessment annulled and set aside.

JAMES B. POSEY, Appellant, vs. THE COMMISSIONERS OF HIGHWAYS et al. Appellees.

Opinion filed June 16, 1914.

FREEHOLD—when question of location of highway does not involve a freehold. If there is no dispute as to the existence and width of a public highway but the only question is the true location of the highway no freehold is involved.

APPEAL from the Circuit Court of Marion county; the Hon. JAMES C. MCBRIDE, Judge, presiding.

KAGY & VANDERVORT, for appellant.

CHARLES H. HOLT, and W. G. WILSON, for appellees.

Mr. JUSTICE CARTER delivered the opinion of the court:

This was a bill filed in the circuit court of Marion county by appellant to enjoin the commissioners of highways of Omega township, in said county, and one W. J. Spencer, a rural mail carrier, from trespassing on his land by changing, or attempting to change, the lines of highways thereon and using the highways as so re-located; also to enjoin said commissioners from prosecuting a common law suit then pending against appellant in said court for the alleged obstruction of said highways as re-located. Two roads are involved, one running north and south and the other east and west, intersecting the north and south road. The circuit court entered a decree granting the relief prayed as to the north and south road in question but denying the relief as to the east and west road; also refusing to enjoin the

common law suit and ordering that each party pay his own costs. The cause was then appealed to this court.

James B. Posey, the appellant, is the owner of eighty acres of land in Omega township, which came to him from his mother, who had lived on the land, or a part thereof, since 1880. The land was composed of two twenty-acre tracts, one lying north of the other, and a forty-acre tract lying west of the south twenty-acre tract. Along the north side of the forty-acre tract, and running between the two twenty-acre tracts, is an east and west road. Along the west side of the two twenty-acre tracts is a north and south road. The northwest corner of the forty-acre tract is the center of the section, and the east and west road runs on or near the line dividing the section into quarters, while the north and south road runs on or near the line dividing the north-east quarter of said section into east and west halves. As to whether the center of the roads as laid out a number of years ago by the commissioners, and as the roads now exist, are or were intended to be on the exact lines in question was disputed in the trial court.

Neither party questions the decree here as to the north and south road. The only controversy is as to the location of the east and west road. Both parties concede the existence of the road—a perpetual easement forty feet in width. The sole question is the actual location of such easement. That depends, not upon the question of title or ownership of the property or easement in the public, but upon the determination of the true boundary line between appellant's land and the road. A freehold, under our decisions, is therefore not involved in this cause. Keating v. Hayden, 132 Ill. 308; Road District v. Miller, 156 id. 221; People v. West Chicago Street Railroad Co. 203 id. 551.

This court is without jurisdiction. The cause will be transferred to the Appellate Court for the Fourth District. Cause transferred.

JOHN FUNK, Defendant in Error, vs. CHASE Fowler, Plaintiff in Error.

Opinion filed June 16, 1914.

Appeals and ERRORS—when no question of freehold is involved. No freehold is involved where the controversy is whether a quitclaim deed was intended by the parties as an absolute deed or as mere security for the grantor's indebtedness; and this is true, regardless of whether the trial court holds the conveyance to be a deed or a mortgage.

WRIT OF ERROR to the Circuit Court of LaSalle county; the Hon. EDGAR ELDREDGE, Judge, presiding.

MCDOUGALL & CHAPMAN, for plaintiff in error.

LESTER H. STRAWN, and M. N. ARMSTRONG, for defendant in error.

Mr. JUSTICE VICKERS delivered the opinion of the court:

This is a writ of error directed to the circuit court of LaSalle county, and brings up for review a decree dismissing a cross-bill filed by plaintiff in error and granting an injunction against the prosecution of an action of forcible entry and detainer, and decreeing that a deed made by the plaintiff in error to defendant in error for the premises involved in the forcible entry and detainer suit was an absolute conveyance of the lands therein described, and for other relief as prayed for in the original bill.

Defendant in error has made a motion to transfer the record to the Appellate Court for want of jurisdiction in this court, and that motion has been taken for decision with the case.

Chase Fowler, plaintiff in error, is a practicing attorney of LaSalle county and for more than ten years has been the attorney for defendant in error, Funk. Many business transactions have occurred between the parties of

a personal character that were not directly connected with the relation of attorney and client. Plaintiff in error borrowed money from Funk at various times and Funk became surety on Fowler's obligations to other persons. The aggregate amount of obligations thus created of plaintiff in error to defendant in error was several thousand dollars. While these transactions were being had plaintiff in error was the owner of certain lands described in the bill, which are situated in section II, township 33, range 4, in LaSalle county. On July 12, 1906, plaintiff in error made a quitclaim deed to defendant in error purporting to convey all interest which plaintiff in error had in and to the premises involved in this controversy. There were other agreements between the parties both before and subsequent to the execution of the deed. After the deed was executed an arrangement was made between the parties by which plaintiff in error was to occupy the premises and pay the interest on a $6000 mortgage which was a lien on the land at the time the deed was made, and pay the taxes and interest upon other items of indebtedness. Plaintiff in error contends that while he was thus in the possession of the premises, defendant in error, through certain parties acting under the authority of defendant in error, invaded his possession, to regain which an action of forcible entry and detainer was commenced before a justice of the peace. It is the prosecution of this action of forcible entry and detainer that was sought to be enjoined by the original bill filed by defendant in error.

It is the claim of defendant in error that the quit-claim deed was executed for the purpose of vesting him with the absolute title to the premises, and that defendant in error, by virtue of said deed, is the owner of all the title and interest held by plaintiff in error prior to the execution of said quit-claim deed. On the other hand, plaintiff in error contends that the quit-claim deed was executed primarily for the purpose of securing defendant in error from loss

by reason of the loans he had made to plaintiff in error and contingent liabilities he had assumed as security for him. Upon a hearing in the court below, as already stated, a decree was entered finding that the deed was an absolute conveyance and that plaintiff in error had no interest or title in the premises, and enjoined the prosecution of the forcible entry and detainer suit. The cross-bill filed by the plaintiff in error seeking to have the quit-claim deed held to be a mere security was dismissed.

The controlling question involved in this litigation is whether the quit-claim deed made by plaintiff in error to defendant in error was an absolute deed or a deed executed as a mere security to secure financial obligations of the grantor. This being the issue involved, under numerous decisions of this court no freehold is involved and this court is without jurisdiction to determine the controversy. Among the more recent cases in which this question has been decided the following may be cited: Eddleman v. Fasig, 218 Ill. 340; Burroughs v. Kotz, 226 id. 40; Halbert v. Turner, 233 id. 531; Reagan v. Hooley, 247 id. 430; Oswald v. Hexter, 254 id. 158. It is immaterial, when an issue of this kind is presented, which way it is determined in the court below. Whether or not a freehold is involved does not depend upon the way in which the issue is decided below. In some of the cases above cited the deed involved was held to be a deed absolute while in others it was held to be in the nature of a mortgage. There are no other grounds upon which this court can take jurisdiction of the present controversy. The writ of error should have been sued out of the Appellate Court.

The motion to transfer the cause will be sustained, and the clerk of this court will be directed to transfer the cause to the Appellate Court for the Second District.

Cause transferred.

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