Houts v. First Trust & Savings Bank

RICHARDS, J.

This is an action in which the plaintiff sought to restrain the. defendants from enforcing a writ of assistance for the eviction of herself from the possession of the premises involved in the action.

The facts of the case were these: Prior to January 7, 1907, the plaintiff and her husband, W. A. Houts, were the owners of the premises in question and occupied the same as their family residence. On the above date they joined in- a deed to the property to one Edward O’Gara upon the understanding between themselves and their grantee that he would at once execute a lease thereof to the plaintiff for the term of forty years at the nominal rental of one dollar per annum;

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and, apparently, upon the further understanding that he would presently convey the property to a corporation known as the Traders’ Investment Company; The said O’Gara immediately executed said lease, delivering the same to the plaintiff, who in turn gave it to her husband, who put it away in his safe deposit box. This lease was never recorded. A few days later O’Gara conveyed the property to the Traders’ Investment Company. There was no consideration moving to O’Gara for any of these transactions, and the Traders’ Investment Company was simply a name or mask under cover of which said W. E. Houts, husband of the plaintiff, conducted some portions of his business. Having thus acquired the title to the property, the Traders’ Investment Company proceeded to mortgage the same to the defendant, First Trust and Savings Bank, for a loan of nine thousand five hundred dollars. This loan not being repaid the mortgagee brought an action to foreclose its mortgage, to which action the said W. A. Houts and his wife, the plaintiff herein, were not made parties, and in due course of the proceedings obtained a judgment of foreclosure directing a sale of the property, at which sale the said mortgagee became the purchaser thereof for the amount of the judgment debt, and, the time for redemption having expired, received a deed to the premises. During all of this time the said W. A. Houts and his wife had been occupying the premises as their residence, but without disclosing to anyone, and particularly to the mortgagee, the fact of the existence of the plaintiff’s lease, up to the time when the latter sought to enforce its right of possession by the eviction of Houts and his wife from the property; whereupon the present action was instituted to restrain the enforcement of the writ of assistance issued in that behalf.