APPEAL from the Circuit Court of St. Clair County; the Hon.
ALVIN H. MAEYS, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 11, 1977.
Defendants, John and Patricia McDaniel appeal from an order of the Circuit Court of St. Clair County enjoining them from maintaining a "trailer house or mobile home" on their property, in violation of a restrictive covenant. Germania Federal Savings and Loan Association (Germania), mortgagee of the McDaniels' property, appeals from the same court's denial of its petition to intervene.
The plaintiffs instituted this action on September 6, 1974. After the filing of responsive pleadings, the case was set for hearing on March 14, 1975. Prior to that date, however, defendants filed a "Motion for Continuance," alleging as grounds therefor that the Illinois Supreme Court would soon be deciding a case involving identical issues. The circuit court denied defendants' motion, and the hearing was held as scheduled. On April 29, 1975, the court filed an order and memorandum opinion denying the injunctive relief sought by plaintiffs.
On May 19, 1975, the Illinois Supreme Court filed its opinion in Brownfield Subdivision, Inc. v. McKee, 61 Ill.2d 168, 334 N.E.2d 131 (1975). A few days later, plaintiffs submitted a post-trial motion, praying that the court vacate its order of April 29, and issue the injunction previously requested. On July 28, 1975, the circuit court granted plaintiffs' motion and enjoined defendants from maintaining the disputed structure on their property; this action was apparently prompted by Brownfield, although that decision is not referred to in the court's order. See The Immobile Mobile Home Brownfield Subdivision, Inc. v. McKee, 25 De Paul L. Rev. 553, 561 (1976).
On August 18, 1975, Germania filed a petition to intervene as party defendant and a motion to vacate the order of July 28. The court denied Germania's petition, finding: (1) that Germania was not a necessary and indispensable party, (2) that the petition to intervene was not timely filed, (3) that granting the petition would unnecessarily delay the original proceedings, and that such delay would injure the plaintiffs, (4) that Germania failed to allege the existence of new evidence or any other matter which would require reversal of the judgment entered, and (5) that Germania did not exercise due diligence in obtaining its security interest from the defendants.
Defendants' property, which they purchased by warranty deed in July of 1974, was originally part of a larger tract owned and subdivided by Howard R. Moore. The tract is located in Villa Hills, an area just outside the City of Belleville. Defendants' warranty deed was expressly made subject to the restrictive covenants contained in a contract for deed dated June 1, 1966, and recorded on October 24, 1967. The relevant restrictive covenants, as they appear in the contract, state that:
"Plans for all buildings shall be submitted to Howard R. Moore for approval in writing and such buildings shall be completed in a good and workmanlike manner.
There shall be no trailer houses placed on these premises for either temporary or permanent dwelling occupancy.
These restrictions to run for a period of 25 years from August 6, 1961 and shall be binding upon the vendees herein, and his or her heirs, executors, administrators and assigns." (Emphasis added.)
After the McDaniels acquired their lot in Villa Hills, they purchased a home from one Agnes Dunn. The home is a 1971 "Twin Lakes" model, described in the record variously as a mobile home, a double-wide mobile home and a modular home. It consists of two main components and a third, smaller component used as a family room. The components are designed to be bolted together as one living unit, and are not individually suitable for habitation. Each of the main units is 45' x 12', while the family room has dimensions of 26' x 12'. When the three components are joined, they provide approximately 1,400 square feet of living space. The main components are each built upon an undercarriage, to which axles, wheels and hitches can be attached. This removable "running gear" makes it possible to transport the units from one site to another. The family roon, however, has no undercarriage.
In order to purchase the home from Mrs. Dunn, the McDaniels entered into a $13,000 mortgage agreement with Germania. The agreement covers the McDaniels' lot in Villa Hills and "all buildings, improvements, fixtures or appurtenances now or hereafter erected thereon." The McDaniels subsequently contracted with a professional moving company to transport the structure from its permanent foundation in back of Mrs. Dunn's house to the McDaniels' property in Villa Hills. After the structure was hauled to its new location, it was placed upon a permanent foundation, the running gear was removed from the main units and the three components were bolted together. The record does not contain any explanation of how the structure was affixed to its foundation. Photographs were taken of the structure as it was transported to and assembled on the McDaniels' property. These photographs, which are included in the record, show that the individual components have the appearance of a mobile home.
Because the defendants purchased the structure second-hand, they received no descriptive brochures from the manufacturer, nor did they receive any ownership papers from Mrs. Dunn. On cross-examination, John McDaniel admitted that he had identified the structure as a double-wide mobile home on an application for insurance and on a financing statement given to Germania. Neither the insurance application nor the financing statement is included in the record on appeal. The structure was identified as a mobile home on the McDaniels' application for a certificate of zoning compliance. John McDaniel explained, however, that this application was filled out by an employee of the Department of Zoning and that he did not agree with the employee's characterization of the structure.
We will first consider Germania's contention that its petition to intervene was improperly denied. Germania argues that it was an indispensable party to the action, that it had an absolute right to intervene under section 26.1(1)(b) of the Civil Practice Act, and, finally, that the trial court abused its discretion in refusing to allow Germania to intervene under section 26.1(2)(b). Ill. Rev. Stat. 1975, ch. 110, pars. 26.1(1)(b) and 26.1(2)(b).
• 1 All persons are necessary or indispensable parties to the litigation who have an interest in the subject matter which will be materially affected by the decree. (Mortimore v. Bashore, 317 Ill. 535, 148 N.E. 317 (1925); Safeway Insurance Co. v. Harvey, 36 Ill. App.3d 388, 343 N.E.2d 679 (1st Dist. 1976).) Fundamental principles of due process require the joinder of all indispensable parties to an action, and an order entered without jurisdiction over an indispensable party is null and void. The failure to join an indispensable party may be raised at any time, either by the parties or by the trial and appellate courts> sua sponte. National Bank v. S.N.H., Inc., 32 Ill. App.3d 110, 336 N.E.2d 115 (1st Dist. 1975); Glickauf v. Moss, 23 Ill. App.3d 679, 320 N.E.2d 132 (1st Dist. 1974).
We have discovered only one Illinois case, Gulick v. Hamilton, 287 Ill. 367, 122 N.E. 537 (1919), which discusses whether the mortgagee is an indispensable party to an action for injunction brought against the mortgagor. In Gulick, plaintiffs sought an injunction against the owner of an allegedly servient estate. The injunction would have prohibited the defendant from completing construction of a building which would have blocked a 10-foot strip of his land, over which plaintiffs claimed an easement. The trial court dismissed plaintiffs' action. On appeal, however, the supreme court reversed. The court held, inter alia, that defendant's mortgagee was not an indispensable party, reasoning that:
"A proceeding for an injunction is personal against the individual, and the mortgagee was not erecting the building or participating in it and had no present interest to be affected by the decree. If the defendant should be permitted to improve the mortgaged property by extending his building over the 10-foot strip the security would be increased, but the defendant testified that the naked property, without any improvements, was worth $85,000 and the mortgage was for $37,000. The defendant was the one, and only one, responsible for the alleged wrong, and the injunction sought was personal against him. Under these circumstances the mortgagee was not a necessary party." 287 Ill. 367, 372, 122 N.E. 537, 539.)
Gulick is, of course, distinguishable from the instant case. Germania lent $13,000 to the McDaniels under their mortgage agreement. The McDaniels paid only $2,000 for their unimproved lot. The mobile or modular home, presumably included in the mortgage as a "building, improvement, fixture or appurtenance," was intended to provide the balance of Germania's security for the loan. From these facts, Germania could conclude that it had "a present interest to be affected by the decree" and that, therefore, it was an indispensable party. We do not find this reasoning persuasive.
• 2 The instant case involves a dispute over how the McDaniels may use their property, not over title to the property itself. Because of this fact and for the reasons stated below, we believe that the case at bar is distinguishable from Hauser v. Power, 351 Ill. 36, 183 N.E. 580 (1932), a case cited by Germania wherein the supreme court held that a mortgagee was an indispensable party to a dispute over title to the mortgaged real estate. At the time Germania and the McDaniels entered into their mortgage agreement, the contract which restricted the McDaniels' property was of record in the recorder of deeds office. Germania, therefore, had constructive, and probably actual, notice of the restrictive covenant prohibiting trailer houses, as McDaniel testified that an employee of Germania gave him a copy of the bond for deed which first brought the language of the restrictive covenant to his attention. *fn1 In Bruno v. Picchi, 99 N.Y.S.2d 207 (1950), the court held that a mortgagee was not an indispensable party to an action brought to enforce an easement against the mortgagor, reasoning that the mortgagee could not complain if the plaintiff prevailed, because its mortgage recognized the easement, and that if the mortgagors succeeded, the mortgagee would have additional security and thus would not be prejudiced. We feel that this reasoning applies to the situation presented in the instant case. It is immaterial that the mortgage agreement between Germania and the McDaniels did not expressly recognize the restriction against trailer houses. The bond for deed was properly filed and, as a matter of law, Germania was required to recognize the restrictions contained therein, regardless of how it chose to interpret them. If the McDaniels succeed in the case at bar, Germania's security will be increased. If the plaintiffs succeed, however, Germania's security will not be diminished because it will be left with exactly what it bargained for a mortgage on the McDaniels' lot, subject to restrictive covenants. We, therefore, conclude that Germania was not an indispensable party to this action.
• 3 Even if we were to decide that Germania had a sufficient interest in this controversy, we would not require its joinder as an indispensable party. The rule requiring joinder of indispensable parties is not applied when a party, though not before the court in person, is so represented by others that his interest receives actual and efficient protection. (Mortimore v. Bashore, 317 Ill. 535, 148 N.E. 317 (1925); Cales v. Dressler, 315 Ill. 142, 146 N.E. 162 (1925); Cody Trust Co. v. Hotel Clayton Co., 293 Ill. App. 1, 12 N.E.2d 32 (2d Dist. 1937); Glickauf v. Moss, 23 Ill. App.3d 679, 320 N.E.2d 132 (1st Dist. 1974); Boghosian v. Mid-City National Bank, 25 Ill. App.2d 455, 167 N.E.2d 442 (1st Dist. 1960).) This so-called "doctrine of representation" applies where persons are before the court who have the same interests, and will be equally certain to bring them forward and protect them, as those of persons not before the court. Mortimore v. Bashore, 317 Ill. 535, 540, 148 N.E. 317, 319 (1925).
• 4 Although the courts> have used general language in stating the "doctrine of representation," its operation has been most frequently applied in cases holding that the executor is an adequate representative of the beneficiaries under a will. (See, e.v., Hale v. Hale, 146 Ill. 227, 33 N.E. 858 (1893); Cales v. Dressler, 315 Ill. 142, 146 N.E. 162 (1924); cf. Boghosian v. Mid-City National Bank of Chicago, 25 Ill. App.2d 455, 167 N.E.2d 442 (1st Dist. 1960).) Nonetheless, we see no reason why the doctrine cannot apply, in an appropriate situation, to the relationship between mortgagor and mortgagee. In the instant case, the interests of Germania and the McDaniels were identical. Both desired a ruling that the mobile or modular home was not a "trailer house" the McDaniels in order to preserve their home, and Germania in order to protect its security interest. Under these circumstances, we feel that the McDaniels were an adequate representative of Germania's interests.
Germania also contends that it should have been allowed to intervene. The rules of intervention are set out in section 26.1 of the Civil Practice ...