delivered the opinion of the Court:
The only question presented on this record is, whether, in an attachment suit, where land has been levied on, and a third party interpleads, setting up title, and there is a replication, though the deed is absolute in form, that it was intended to be and was but a mortgage, the court can try the issue, or must it be referred to a court of equity. The act of 1869, amendatory of the chapter entitled “Attachments, ” Rev. Stat. 1845, provides, that “such officer shall, without delay, execute such writ of attachment upon the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor, or upon any lands or tenements in and to which such debtor has or may claim any equitable interest or title of sufficient value to satisfy the claim sworn to, with costs,” etc. (Laws 1869, p. 355.) It is under this provision that the issue was made in this case.
Under the law as it stood in 1845, it was held that an equitable title or interest in lands was not the subject of attachment, (May v. Baker, 15 Ill. 89, and Lowry v. Wright, id. 96,) and such proceedings were held void when the defendant was not served with process. (West v. Schnebly, 54 Ill. 523.) The evident purpose of the amendment was to render equitable interests in lands subject to attachment to the same extent as legal titles. Of this there can be no question. And in adopting the amendment no change was made in the law, as it then stood, by which the issues shall be tried and the equities settled and the property should be sold. The practice of interpleading where land is levied on under a writ of attachment, is recognized in the case of Needham v. Clary, 62 Ill. 344. The question in that case arose out of a levy on land under such a writ, and the practice was not challenged, nor is any reason perceived why a jury may not try the legal title to land on an issue made by interpleader as well as under an issue in ejectment. Whilst this is true as to legal titles, it is denied that such a mode of trial is applicable to settling equitable interests of the parties.
The question is then presented as to the mode in which the issue shall be tried. The statute in terms provides that when the issue is made on filing an interpleader, the court shall cause a jury to be impanelled to try the issue. Nor does the statute make any distinction between legal and equitable titles. It is peremptory that the issue shall be tried, and tried by a jury. Had the law-makers intended that in case a levy was made on an equitable interest in land, a trial should be had on a creditor’s bill, it would have been so provided; or had it been intended that the equities should be settled by the judge, and not by a jury, such issues would have been excepted, and the judge been required to try them; and failing to so provide, we can not thwart the intention of the statute, but must enforce it as we find it.
It is claimed that the court should have rendered judgment for the sale of the land, notwithstanding the interpleader, and have left the parties, on a bill to be subsequently filed, to have settled the question whether the defendant held an equitable title to the land. This would be in violation of the requirements of the statute. Here the interpleader claimed that he held the legal title to the land; but the attaching creditor replied that although the deed was absolute in form, it was but a mortgage to secure the payment of $7756, and the land was worth $15,000. To this replication the interpleader rejoined denying the averment that the deed of conveyance was a mortgage, and on this an issue was formed, and the case was submitted to the court for trial, plaintiff reserving the right to insist the court had no jurisdiction to try this issue. On the trial the claimant under the deed proved it' was a corporation organized under the laws of Missouri, and the execution of the deed to it by defendant Haeussler, the grantee of Keeler, which was all the evidence heard in the case. But plaintiff offered to prove that the deed was in fact but a mortgage, made to secure $7756 due from Keeler to Haeussler, and the property was worth $15,000, and that the St. Louis Carbon Works Company, when it received the conveyance of the property from Haeussler, knew he only held it as a mortgage; but the court rejected the evidence, and refused to permit plaintiff to prove such facts. He also offered to prove that defendant in attachment, at the levy of the writ, had and claimed an equity of redemption in the premises, and the company had notice of such facts, and of the levy of the writ of attachment, when it received the deed from Haeussler mentioned in the plea; but the court rejected the evidence, and held plaintiff’s only remedy was in equity. The court found that the land was not subject to the attachment, as shown by the interpleader, and quashed the writ, but rendered judgment against the defendant for the amount claimed in the affidavit praying the writ. .
We have seen that an equitable interest in land is authorized to be levied on in attachment, and an interpleader may set up title by plea, and an issue formed and a jury impanelled to try the issue. Here an issue was formed to be tried whether this deed, although absolute in form, was not in fact a mortgage, and whether the claimant under the deed did not have notice of that fact, and that the levy had been made, when the purchase was made from Haeussler. This issue was simple and free from difficulty, and any jury was competent to determine it on evidence adduced; and had the issue been submitted to a jury, it would have been error had the court rejected the evidence offered by plaintiff, and it was equally error for the court to refuse to hear and give due force to its weight;
In the case of The City Insurance Co. v. Commercial Bank, 68 Ill. 348, it was held that in a claim by an interpleader the court would not determine the equities of the creditors of an insolvent corporation, the assets of which were in the hands of a receiver, who were not parties to the attachment suit; but it was not held that the equitable rights of the interpleading receiver would not be determined. That case, therefore, in nowise conflicts with what we hold in this case, and for the error indicated the judgment of the court below is reversed.
Judgment reversed.