165 N.E. 189 | Ill. | 1929
Plaintiff in error, Ella C. Coleman, filed her bill of complaint to the March, 1925, term of the circuit court of Ford county to foreclose a trust deed, by which trust deed 160 acres of land in Ford county were mortgaged. E.D. *65 Cameron, as receiver, was duly appointed in the proceedings and collected the rents from the real estate. On the 14th day of September, 1925, a decree of foreclosure was duly entered, and on the 24th day of February, 1927, the master filed a report of sale, in which he reported that he had sold the property to plaintiff in error for $28,000; that after distribution of the proceeds of the sale there was still due to plaintiff in error $3189.98; that afterwards a deficiency decree was entered in the cause in her favor for the sum of $3189.98; that thereafter the receiver filed his report that he had on hand from rents collected and from the crops of 1925 and 1926, $2293.26. On the first day of October, 1927, the court entered a decree in which it found that the receiver, under a stipulation made in open court by the parties to the proceeding, was entitled to $240 for his fees; that the balance of the money in his hands, $2053.26, should be paid to Lucy Mulcahey as the owner of the equity of redemption; that the trust deed foreclosed in said proceeding did not mortgage the rents to Ella C. Coleman as security for her loan. From this decree Ella C. Coleman prosecuted an appeal to the Appellate Court for the Third District, by which court, on the second day of May, 1928, the decree was in all things confirmed. The cause is here by leave of this court for review on certiorari.
Plaintiff in error claims that by the terms of the decree of foreclosure she was equitably entitled to have the rents now held by the receiver applied upon her indebtedness. The Appellate Court affirmed the decree without passing upon the merits of plaintiff in error's claim, for the reason that the record did not contain a certificate of the evidence upon which the decree was based. Plaintiff in error contends that as the decree granted defendant in error Lucy Mulcahey specific relief, the burden was on her to preserve the evidence on which her decree was based. This rule is correct, but there are two ways of preserving the evidence. *66
One is by a certificate of the evidence duly certified by the trial judge, and the other is by the court in the decree making a sufficient finding of facts to justify the relief granted. If the decree does find the facts and there is no certificate of evidence, the facts as stated in the decree must be accepted as true and the decree be affirmed on appeal. (Van-Meter v.Malchef,
The statements contained in the decree show that it was in part based on evidence not shown by the record otherwise than in the finding of facts in the decree. It is conceded by all parties to the cause that the provision of the *67
trust deed that the receiver should pay the rents and profits collected by him to the person entitled to a deed under the certificate of purchase is invalid. Where there is no pledging of the rents during foreclosure, the owner of the equity of redemption is entitled to such rents and profits where the deficiency decree under which the receiver is in possession is not against such owner of the equity but against other parties. (Standish v. Musgrove,
Assuming, as we must, that the finding of facts in the decree are true, defendant in error Lucy Mulcahey, as owner of the equity of redemption, was entitled to the rents and profits during the period of redemption, and the circuit and Appellate Courts properly so held.
Decree affirmed.