95 Ill. App. 543 | Ill. App. Ct. | 1901
delivered the opinion of the court.
We are of the opinion that the original bill sufficiently charged that the building and loan association had declared the bond secured by its mortgage due, and ordered the stock forfeited on account of the failure of Daniel H. Gillespie to pay his dues, interest, taxes and insurance, to warrant the proof taken by the master to the effect that the association, at a regular meeting held September 9, 1897, which was before the bill was filed, declared the bond due for such failure, and that it afterward, in November, 1897, directed proceedings to be taken to foreclose at once the mortgage which secured it; and further, that this proof sufficiently supports the decree to that effect.
The evidence taken by the master also shows that Daniel H. Gillespie had arranged with one Clapp to bid for him at. the meeting of the association when the money was sold for which the bond and the mortgage were given.
In Palmer v. DeWitt County Building Association, 79 Ill. App. 367, referred to by counsel for plaintiff in error in support of their contention that the bill was insufficient, the holding was that the proofs did not sustain the allegations of the bill to the effect that the directors had authorized proceedings to be brought, but in the case at bar such proof was clearly and fully made.
The mortgage sought to be foreclosed by the original bill was a superior lien to those sought to be foreclosed by the cross-bills, and as the holders of the junior mortgages were made defendants to the original bill, they could have set up their mortgages and obtained payment in case there was a surplus upon sale of the property on a mere motion without answer, so that it was unnecessary to file cross-bills, and it was error for the court to allow attorney’s fees for such. Soles v. Sheppard, 99 Ill. 616.
The evidence taken by the master, with reference to the sale of the personal property made by Garr-Scott Company under a chattel mortgage given by Daniel H. Gillespie to it, satisfies us that the $500 which it brought at the sale was not a sufficient price therefor, but the Circuit Court having allowed $750 more, we think that sufficiently accounted for the difference between what it brought and its real value, when all the evidence is considered, so that the allowance of $1,250 made by the court was fair, and Daniel II. Gillespie has no cause to complain of such allowance being too small.
While the mortgages of Roberts and Garr-Scott Company provided for the appointment of a receiver to collect rents during the time intervening from the entry of the decree until the property was redeemed, or the time of redemption had expired, yet inasmuch as neither the original nor either of the cross-bills prayed for the appointment of a receiver, it was error for the court to appoint one.
For the two errors above indicated we will reverse so much of the decree as allows $25 attorney’s fees for foreclosing the Roberts mortgage, and $50 for foreclosing the Garr-Scott Company mortgage, and so much thereof as provides for the appointment of a receiver; in all other respects the decree will be affirmed.
One-half the costs in this court will be taxed to plaintiff in error and one-half to defendant in error.
Affirmed in part and reversed in part.