148 Ill. App. 399 | Ill. App. Ct. | 1909
delivered the opinion of the court.
The assignments of error in this case are as follows:
1. The court erred in entering a decree in favor of appellees.
2. The court erred in sustaining the master’s report.
3. The court erred in not entering a decree in favor of appellants.
4. The court erred in not finding the issues for appellants.
5. The court erred in overruling appellant’s objections to the master’s report.
Counsel for the defendants object that these assignments are too general, and require the court, if it will review the cause, to search the record for errors which may have been committed, a burden which should not be placed on the court. The only clue which the court would have in such search is the fifth assignment, that “the court erred in overruling objections to the master’s report,” which were ordered to stand as exceptions on the hearing, and which are fifty-eight in number.
Counsel for defendants cite, in support of their objection, Skakel v. The People, 188 Ill. 291; Verble v. Dillow, 218 ib. 537, 539-40; Stanley v. Chicago T. & S. Bank, 61 Ill. App. 257, and Barth v. Union National Bank, 67 ib. 131, 133. In the case last cited the court say: “The assignments are, in effect, that the whole order is wrong, and, therefore, if it is in part right, the assignments must be overruled. 2 Ency. PL & Pr. 951”. This is in accordance with the rule that if two or more assign errors jointly, and the assignment is bad as to one, it is bad as to all. In the present case it cannot be said that all of the objections to the master’s report are good, if any of them are, and we are inclined to the view that the decree should be affirmed for want of specific assignments of error. However, we will consider the propositions on which counsel for the complainants rely and which they argue.
It appears from the evidence that the notes in question, secured by the trust deeds sought to be foreclosed, were made by Brown for a loan to be used in the erection of a building on the premises described in the trust deeds, and that the complainant Huber knew that the money was to be so applied, and that, about the time of the loan there was money belonging to Huber in the hands of Theodore H. Schintz, trustee, who made the loan to Brown. From these and other circumstances counsel for defendants argue that Schintz acted as Huber’s agent in making the loan, that the loan was really Huber’s to the extent of the amount of the note held by him.
The evidence on the question whether Schintz acted as Brown’s agent is conflicting. The master found to the contrary, and his report was confirmed by court. In such case the decree must stand, unless it is clearly and manifestly contrary to the evidence (Siegel v. Andrews & Co., 181 Ill. 350), which we cannot say it is.
It is contended that Huber and Mann are not innocent holders, because, as counsel say, they took the notes with full knowledge of the fact that it was a building loan, and that the money was to remain in Schintz’s hands to be paid out by him as required. Huber and Brown, when they purchased the notes, paid $3,200 for them, and the court allowed only $1,200 principal on the two notes, dividing it proportionally between Hnber and Mann, so that the objection of counsel affects only the confessions of judgment on the notes, which are for the whole amounts due on them, and in respect to which the court decreed that the judgment should stand and be made absolute. The judgments are not made a lien by the decree, and the decree provides that the proportions allotted to complainants of the $1,200 advanced by Schintz shall be credited on the judgment. It is contended that the notes and trust deeds were merged in a decree of the Superior Court of Cook county rendered January 15, 1900. The decree referred to was in a mechanic’s lien suit by Wheatman and Boulton, copartners, against Thomas and Elizabeth Brown, Huber, Mann, Schintz and others, praying a lien on the premises in question. Huber and Mann filed an answer, setting up their liens as in the present case. The court adjudicated the rights of the parties, and dismissed the petition and granted no relief to complainants Huber and Mann. An appeal was taken to this court by the Browns and the decree was affirmed— Brown v. Theodore H. Schintz, 98 Ill. App. 452, and an appeal was taken from this court to the Supreme Court, which affirmed the judgment of this court— Brown v. Schintz, 202 Ill. 509. The decree of the Superior Court, so far as complainants Huber and Mann are concerned, is merely a finding of facts and an ascertainment of their rights. No relief is granted them by the decree. “Merger, in the law of contracts, is an absorption or extinguishment of a security of a lower legal degree into another of a higher legal degree”. 20 Am. & Eng. Ency. 596; James v. Morey, 2 Cowen, 246, 300; Weiner v. Heintz, 17 Ill. 259, 262.
The interest of complainants in the premises described in the trust deeds was not increased or in the least affected by the decree in Wheatman v. Brown. Therefore, there was no merger. The Brown notes, held by complainants, were merged in the judgments by confession, bnt this does not , affect their competency as evidence in the case at bar. Brown v. Schintz, 203 Ill. 136, 139. The chief contention of defendants is, that the court erred in allowing certain attorney’s and solicitor’s fees and decreeing payment thereof.
The complainants introduced evidence of the services for which the fees were allowed, and their reasonable value, and defendants produced no contrary evidence. Each of the trust deeds in question provides for solicitor’s fees of the complainant, in the event of foreclosure, following which is this provision : “and that all costs, expenses and solicitor’s and attorney’s fees incurred or paid by the grantee or any holder of any part of said indebtedness, in any suit or proceeding in which any of them as such may be a party, shall also be paid by the grantors, and that all such costs, solicitor’s and attorney’s fees, outlays, expenses and disbursements, shall be an additional lien upon said premises, and be taxed as costs and included in any decree that may be rendered in such foreclosure proceedings”.
The only objection made by counsel for defendants to this provision is that it is in the nature of a penalty. The provision is merely for the payment of expenses which may be legally and actually incurred by the grantees in the trust deeds or any holder of any part of the indebtedness secured by them, and is not, in the least, in the nature of a penalty. It might as well be said that a provision in a trust deed or mortgage, for payment of solicitor’s fees, for services in foreclosing the trust deed or mortgage, is a penalty; yet such provision has been frequently held valid.
Henke v. Gunzenhauser, 195 Ill. 130, was a suit to foreclose a trust deed which contained a provision for $100 solicitor’s fees in foreclosing the trust deed, next after which was this provision: “It is agreed that said grantors shall pay all costs and attorney’s fees incurred or paid by the said grantee, or the holder or holders of said notes, in any suit in which either of them may be plaintiff or defendant by reason of being a party to this trust deed or a holder of said notes, and that the same shall be a lien on said premises, and may be included in any decree ordering the sale of said premises and taken out of the proceeds of any sale thereof”. The complainant, Henke, claimed that, in addition to his expense, in employing the solicitor who acted in the foreclosure proceedings, he had become indebted to other solicitors for drafting the bill, etc., to the amount of $800. The court entered a decree for $625, solicitor’s fees, which was reversed by the Appellate Court (97 Ill. App. 485), the latter court holding that only the sum of $100, provided by the trust deed for foreclosing it, could be allowed. The judgment was affirmed by the Supreme Court, that court holding that the provision in the trust deed quoted supra applied to proceedings “other than the proceedings to foreclose,” saying: “It can readily be conceived that such a suit might have been brought, either at law or in equity, affecting the rights of the grantee or holders of the notes, before the mortgage debt was due, and before the deed could have been foreclosed”. Ib. 134. The validity of the provision is not questioned by the Supreme Court, and we have no donbt of its validity. The attorney’s and solicitor’s fees allowed by the decree are within the provisions of the trust deeds, and the contrary is not claimed.
It is urged that the court erred in decreeing that the judgments by confession should stand, for the reason that Huber and Mann were not innocent holders of the notes. "While Brown might set up, in a suit by Huber and Mann to foreclose the trust deeds, any defense which he might have in such a suit by Schintz, it does not follow that he could so do in a suit on a negotiable note, for which full consideration was paid. As said of Huber and Mann in Brown v. Schintz, 202 Ill. 509, 510, “It is not denied that they paid in money not only the $1,200, which they are seeking to recover, for the notes and trust deeds, but the full consideration named therein, $3,200”.
The mere fact that Huber knew that the loan was a building loan and would be held by Schintz to be paid out by him as the building progressed—in other words, that the consideration for the note which he, Huber, paid was to be paid out on Brown’s account in the future—would not be a defense in a suit against Brown on the note. Siegel v. Chicago T. & S. Bank, 131 Ill. 569. Brown, himself, knew this.
There is no evidence to show that Mann had any knowledge that the loan was a building loan, or that any of the money loaned was to remain in Schintz’s hands.
We find no reversible error in the record, and the decree will be affirmed.
Affirmed.
