120 Ill. 390 | Ill. | 1887
delivered the opinion of the Court:
This case is brought before us by writ of error to the Appellate Court for the Third District, which affirmed a decree of the circuit court of McLean county, foreclosing a mortgage.
In January, 1876, Margaret A. Haldeman borrowed'of the Massachusetts Life Insurance Company, through Tillotson & Wait, at Bloomington, $3600, she and her husband executing their bond to the company for that sum, bearing ten per cent interest, and giving a trust deed, to secure the payment of the bond, upon the land described in the bill. At the time, John B. Haldeman, husband of Margaret A., allowed to Tillotson & Wait a commission of five per cent ($180), which was retained by the latter from the money. In January, 1881, the bond maturing, Haldeman and wife made application to Tillotson & Fell, successors of Tillotson & Wait, for a renewal of the loan, which Tillotson & Fell obtained, and Haldeman and wife gave their bond to the insurance company for .$3 6 00, bearing eight per cent interest, (the then highest legal rate of interest), secured by trust deed on the same land, receiving no money whatever. On this occasion Haldeman paid to Tillotson & Fell a commission of $80. The last mentioned trust deed is the one foreclosed by the decree. -
The facts of this case, with the exception of the $100, allowed for attorney’s fees, as hereafter stated, are almost the same as the facts in the case of Cox v. Massachusetts Life Ins. Co. 113 Ill. 382. There, a commission of $150 was paid on the original loan, and a commission of $75 for the renewal of the loan, and it was held, that there was nothing of usury in the charge and payment of such commissions. .The question in this case is, whether, under a similar state of facts to that which is stated and discussed in the Cox case, the payment of the commissions above named of $180 and $80 constitutes usury. The opinion in the case referred to is decisive of the present case upon the question of usury.
The trust deed in this ease contained a stipulation, that a solicitor’s fee of $100 might be taxed as a part of the costs, in case a bill should be filed,to foreclose. We think, upon the authority of Dunn v. Rodgers, 43 Ill. 260, and Clawson v. Munson, 55 id. 394, that the circuit court committed no error in allowing the attorney’s fee to be taxed as a part of the costs.
If such allowance by the master in his report to the circuit court had been an improper one, appellants should have called attention to it by an exception to the master’s report, specifically pointing out the objectionable item. This was not done. If such an exception had been filed before the master, the circuit court could have corrected whatever error, if any, may have been committed in taxing the fee.
Counsel for plaintiffs in error claim, that an agreement in a mortgage for an attorney’s fee, such as is above set forth, is usurious. To sustain this claim, he refers to Thomasson v. Townsend, 10 Bush, (Ky.) 114. The Kentucky case seems to support the view, contended for by counsel, but it lays down a doctrine inconsistent with our decisions, and notably with the cases in 43 and 55 111. above referred to. A contract in a mortgage, that an attorney’s fee, which is reasonable in amount, may be taxed as a part of the costs, in a suit to foreclose the mortgage, is not regarded as usurious in this State. We have sustained such contracts as valid.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
