110 Ill. App. 430 | Ill. App. Ct. | 1903
delivered the opinion of the court.
The principal question presented by this appeal is as to whether the appellees, who hold sixteen of said first bonds, and the Fitchburg Steam Engine Co., by virtue of a decree in its favor for a mechanic’s lien, have prior liens to that of the appellants Potter, Gormley and Hately, who, as a committee, represent the holders of $216,000, with accrued interest thereon, of said first bonds.
As appears from the statement preceding this opinion, the master foúnd that, subject to the costs, trustees’ and solicitors’ fees and advances by said Potter, Gormley and Hately for rent, insurance and taxes, as found by his report, the said first bonds to the amount of $242,000, with interest thereon, which includes all the said first bonds except $8,000 that were not issued, were a lien under said first trust deed and superior to the mechanic’s lien' in favor of Fitchburg Steam Engine Co., and also superior to the lien of any of said second bonds mentioned in the statement, and that the latter lien was subject to that of Fitchburg Steam Engine Co. Although the chancellor, in the decree entered, found the facts shown by. the evidence to be in the main as found by the master, he also found that the Hotel Company did not acquiesce in the arrangement which was found by the master to have been made between the representatives of the holders of said first bonds now held by Potter, Gormley and Hately as a committee, and the Equitable Trust Co., viz., that the latter company on receiving said first bonds, pursuant to said first agreement set out in the statement, would hold the same as collateral security for said 'second bonds until such time as all the first bonds had been surrendered to it, and that said Trust Company should, until all said first bonds were deposited with it, hold such as should be deposited uncanceled. The court also further found that the Phoenix Furniture Co. filed a bill in the Superior Court which was maintained by the complainants Potter, Gormley and Hately, in which the Furniture Company in substance alleged that said first, bonds were pretended bonds, and that said first trust deed, given to secure the same, was a pretended trust deed and not a lien, but a mere cloud, and should be removed and discharged, and that such action on the part of Potter, Gormley and Hately was an election by them to treat the exchange of said first for said second bonds as a novation, and as a payment and retirement of said first bonds, and that they are now estopped from asserting a different position in this case. These findings of the court and its decree based thereon constitute the leading point of difference between the master’s report and decree, and the main ground of controversy on this appeal.
That all of said first bonds, except §8,000 thereof, were duly executed and delivered and for value passed to the present holders, and the trust deed securing the same was duly executed, acknowledged and recorded and has never been released, and the said bonds have never been in fact canceled and are now in the possession of the complainant, The Equitable Trust Co., is not contested; but it is claimed by appellees, who are bondholders, that these bonds, except those held by appellees, were in legal contemplation canceled and paid by their exchange for said second bonds. In this connection appellees claim that the evidence shows, as held by the chancellor, that there was a novation, and that the appellants Potter, Gormley and Hately are estopped by the allegations in the Phoenix Furniture Co. bill from asserting fhe claim made by them in this case, except as to sixteen bonds held by appellees and ten bonds held by Potter, Gormley and Hately, which were never surrendered to The Equitable Trust Co.
Up to August 24, 1893, when the-first re-organization agreement referred to in the statement was made, all said first- bonds, except the $8,000 which were never issued, were a valid and first lien secured by said first trust deed. At that time the Hotel Company had become insolvent, the Yories and others creditor’s bill had been filed against it, and The Equitable Trust Co. had been appointed a receiver of all its property and had accepted the appointment. The bondholders, creditors and other persons interested in the affairs of the Hotel Company held meetings prior to August 24,1893, the result of which was said first agreement, that was executed by some but not all of the stockholders, bondholders and creditors of the company, and recites, among other things, that it was their desire that the business of the company should be continued for the benefit of all persons concerned in the company. This agreement also provides for a committee to represent the interests of the signers thereof “severally and collectively,” and empowers such committee to act for the interests of the signers as it “ shall deem proper;” also that all said first bonds “shall be surrendered” by the holders thereof, together with the trust deed securing the same, to said receiver or to the other proper representatives of the corporation, in order that the same “may be canceled;” also that the capital stock should be turned over to said receiver or some person to be selected by said committee to be used and voted in the common interests of all the signers until said second bonds thereby provided to be issued should have been “ paid or redeemed ” according to their terms; also for the issuance of said second bonds and their security by said second trust deed, which should “ cover all of the property, real and personal ” of the Hotel Company; also that expenditures and payments made by the receiver or other person who should succeed in the control and management of the property should be in a certain order, the second provision being for the payment of interest on such of said first bonds as had been sold, and lastly, for the retirement or payment on account of said second bonds; also that “ signatures of ninety-five per cent of the creditors having claims in excess of $500, respectively, shall be necessary to consummate this agreement.”
On November 21, 1893, and after Davidson & Sons, who were signers of said first agreement, had given notice of their withdrawal from the agreement, the board of directors of the Hotel Company passed a resolution in which it is recited that the Hotel Company desired to retire said first bonds and to secure the payment of other indebtedness of the company, and for that purpose authorized and directed the execution and delivery of said second bonds. Said second bonds on their face appear to be first mortgage bonds, and the second trust deed securing the same has a covenant that the property thereby conveyed was “ free from all other and former grants, mortgages, liens, incumbrances, and from taxes, assessments and sales thereof, of any name, kind, nature or description whatsoever,” etc.
It clearly appears from the evidence that after the execution of said first agreement by some of the signers thereof and before any of said first bonds had been deposited by the holders thereof, the different members of the committee, viz., Loose, Schmitt and Carroll, named therein to represent the signers of the agreement, instructed The Equitable Trust Co., which was selected by the committee as the depository of the bonds, both the first and second, that as said Trust Company received any of said first bonds it should retain the same until all of said first bonds should be deposited with it, and that the Trust Company should' then, and not until then, cancel said first bonds, and that until all tit said first bonds should be so deposited the Trust Company should hold those that were deposited uncanceled and as collateral security for said second bonds. These instructions to the Trust Company were never in any manner revoked or altered. Hone of said first bonds that were deposited with tlie Trust Company, $216,000 in amount,, and being the bonds now owned by the complainants Potter, Gormley and Hately as a committee, were ever in' fact canceled. It also appears that the first agreement, after the withdrawal of the signature of Davidson & Sons, which wTas prior to the authorization of the issuance of the second bonds, was not signed by ninety-five per cent of the creditors of the Hotel Company having claims in excess of $500, and consequently under the terms of the agreement itself it could not be and wras not consummated for that reason if for no other. It is true that the second bonds and trust deed securing the same were executed and delivered pursuant to said agreement and the business of the Hotel Company carried on by the receiver until its discharge as such receiver, and thereafter bv committees until December, 1895; but we do not regard this as a controlling fact in determining whether said first bonds were paid, redeemed or canceled.
It seems to us clear, from the foregoing recited provisions of the first agreement, the second bonds and trust deed securing the same and the instructions of the said committee to the Trust Company, in connection with the fact that none of the said $216,000 of first bonds were in fact canceled, and the further fact that said committee was to represent the interests of the signers of the agreement, and in so doing ivas to act as it should deem proper, it was not, as found by- the master, intended, when said first bonds were deposited xvith the Trust Company, to surrender the lien of said first trust deed as security therefor, .but that they were deposited for the purpose of having the same held by the Trust Company unsurrendered and unpaid and as collateral security for said second bonds received in exchange therefor.
Even if, as claimed by the appellees, the evidence does not establish an agreement that, the first bonds were to be held by the Trust Company as collateral security for the second bonds, still it is by no means clear that it was the intention of the holders of the first bonds to surrender or cancel them or to take the second bonds in payment thereof, except upon the condition that all of said first bonds should be surrendered and canceled at the same time, and that they should receive in lieu thereof second bonds which should be a first lien upon all the property of the Hotel Company, free and clear of all incumbrances of every kind or nature. This, it is claimed, was not accomplished, because the holders of $26,000 of the first bonds never delivered them to the Trust Company, nor became parties to the said first agreement, nor is there anything in the record from which, in our opinion, it can be, and it is not claimed that the lien of the Fitchburg Steam Engine Co. is subject or can be made subject to the lien of said second bonds. The purposes of the first agreement could not be consummated until all the first bonds were surrendered and canceled and the second bonds made a first lien upon all the Hotel Company’s property. Until the purposes of the signers of said first agreement could be consummated according to its terms, it seems manifest, in absence of clear and convincing proof that they had made a different agreement or waived their rights under that agreement, they can not and should not be deprived of their equitable right to the lien which they, without question, had when they signed that agreement.
In order to establish a novation, as was held by the learned chancellor, the proof must be clear and convincing. The presumption, in the absence of such proof, is that there was no novation. Wilhelm v. Schmidt, 84 Ill. 183-7; Darst v. Bates, 51 Ill. 439-45; Roberts v. Doan, 180 Ill. 187-9, and cases cited; Henry v. Caruthers, 196 Ill. 136-43; Cheltenham, etc., Co. v. Gates Iron Works, 124 Ill. 623-7, and cases cited; Hughes v. Mattes, 28 Southern Rep. 1006; Mowry v. Farmers L. & T. Co., 76 Fed. Rep. 38-43, and cases cited; Anthony v. Campbell, 112 Fed. Rep. 212-23; Hercules Iron Works v. Hummer, 49 Ill. App. 598; Bour v. Pinney, 80 Ill. App. 51; Henry v. Caruthers, 95 Ill. App. 582; affirmed, 196 Ill., supra.
In the Darst case, supra, in which a junior mortgage was given to secure certain notes, a prior mortgage being released in favor of the junior, it was claimed thatthenotes described in the prior mortgage were discharged. The court cay:
“In taking them up, however, other notes were substituted, and it is manifest the debt for which the notes were given, and to secure which the trust was created, was not thereby paid or discharged. The debt still remained, but the form of the notes had changed; but nothing more, so far as the debtors, the creditors, and the holder of the Garret mortgage were concerned. * * ' * The deed of trust, then, having been given to secure the debt, and it still, in substance, remaining unpaid, the trust will be kept alive to secure its payment. * * * Until the debt is paid, that will stand, as to the parties, unless they do some act for the purpose of releasing the premises from the operation of the trust.”
In the Wilhelm case, supra, the court had under consideration the question as to what was the effect of the acceptance by a creditor of the negotiable note of a third person which was given for a pre-existing debt, and citing many authorities, said:
“ The presumption is that it was not the intention of the parties that it should operate as an immediate and absolute satisfaction and discharge of the debt, and that nothing short of an actual agreement, or some evidence from which' a positive inference of discharge can be made, will suffice to produce such effect.”
This case is re-affirmed in the Gates Iron Works case, supra, in a carefully considered opinion, and the court uses even stronger language when it says that the taking of a note of a third person for a pre-existing debt is not payment “ unless it be expressly agreed to take the note as payment.” To a like effect in principle is the Henry case, supra, and also Roberts v. Doan.
In the Hughes case, supra, the debtor gave his note for an open account, and it was claimed, though there was no agreement, that it constituted a novation. He obtained an extension of time on the note, giving a new note without a surrender of the old note. This was also claimed to be a novation, but the court held that as the obligation itself had not changed, and there being no express agreement that the note, in either case, should be a payment, there was no novation. The court say :
“ Hovation is not easily presumed. To effect it it must appear so evident there can be no doubt but that novation was intended.”
In the Mowry case, supra, which in its facts is quite similar to the case at bar, the Circuit Court of Appeals of the H. S., then composed of Woods, Jenkins and Sho waiter, JJ., the opinion being delivered by Jenkins, J., seems to have carefully considered this question, and say :
“ It is manifestly true that it is possible that one holding bonds secured, by a prior mortgage can so surrender them in exchange for bonds secured by a subsequent mortgage that he will lose any right to. the higher security. "Tlie question must be resolved in each case upon the facts of the particular transaction.. Where a novation is thus sought to be established, it must be shown that the substitution of .the new obligation was with design and intent tb extinguish the old obligation; and as such an act would, upon its face, appear to be against the interest of the holder of the bond, such intent will not be presumed, but must be clearly established.”
In this regard it seems from the argument of appellees’ counsel, the "learned chancellor considered the fact that there was no provision in the first agreement nor in the second trust deed, nor in the resolution of the directors of the Hotel Company, authorizing the second bonds and trust deed securing them, by which the first bonds were to be kept alive,of controlling importance in determining whether there was a novation. We do not, however, so regard it. These documents ail show an intention to retire and cancel the first bonds, and at the same time show clearly this was to be done when ninety-five per cent of the creditors joined in the agreement, all said first bonds- were surrendered, and the second bonds and trust deed securing them had been made a first lien on all the Hotel Company’s property. Heither of these things was done.
Appellees’ counsel concede that whether there was a novation or not is a question of intention, and content themselves with the citation of but two cases, viz., First National Bank v. Radford Trust Co., 80 Fed. Rep. 569, and N. Y. S. & T. Co. v. R. R. Co., 102 Fed. Rep. 382, which they claim present similar facts to the case at bar, are conclusive precedents, and should control hero. The cases are long and can not be reviewed without unnecessarily extending this opinion. After a careful reading of them we are of opinion that the facts of each case are clearly distinguishable from those in this case, and for that reason the decisions are not conclusive. It is important to. note that in the first of these cases, though decided almost a year after the Mowry case, supra, no reference is made to it, and Woods,!., who delivered the opinion .at nisi prints in the second cif these cases, was a member of the court that decided the Mowry case, and bases his opinion in part upon the Mowry case, quoting approvingly a part of that opinion, which we have quoted. He says also that the “ question (novation) is one of contract or intention, and, little aid is to be derived from the cited cases;” also that the bonds seeking priority “ were surrendered without condition or reservation, and to treat them as alive would be "inequitable.”
As we have seen, the chancellor found that the complainants Potter, Gormley and Hatelv maintained the bill filed by the Phoenix Furniture Co. to foreclose the second trust deed, and by reason of the allegations therein contained, which are set out in the statement preceding this opinion, they were estopped from asserting a different position in this case from the one taken in that bill, viz., that the first bonds and the first trust deed were without validity and should be discharged. Counsel for appellants contend that the evidence in this case fails to show many elements necessary to establish an estoppel in pais, among them being the elements that none of the appellees have in any way been deceived by any acts or misrepresentations of the appellants, or either of them, and that neither of the appellees has changed his conduct or altered his position in any respect by reason of any act done or anything said by the appellants, or either of them. This contention, in our opinion, is sustained by the evidence, and the position is not directly controverted; but appellees’ counsel say that the authorities relied on by appellants are not applicable to an “ estoppel of record by pleadings ” such as appears in this case, and cite certain authorities which it is claimed are applicable here. Counsel do not in their argument make any application of the authorities so cited, and we do not think from an examination of them that they establish that an estoppel, such as is here, relied on, is different from the ordinary estoppel in pais. In fact appellees’ counsel further argue that the allegations of the Phoenix Co. bill as to said first bonds “ are the strongest kind of evidence and are binding as admissions ” on the appellants Potter, Gormlev and Hately, thus indirectly conceding that the estoppel claimed is not different from any estoppel in pais. The authorities so relied on by appellees’ counsel have reference to estoppel by pleadings in the same case in which the estoppel is relied on, and not, as here, pleadings in a different case, or they are eases in which an adjudication was had upon the pleading, or the pleading or matter relied on as an estoppel was sworn to by the party held to be estopped. Among the cases cited by appellee that show they are not controlling here, are the following: Watterson v. Lyons, 77 Tenn. (9 B. J. Lea) 566; Perkins v. Jones, 62 Ia. 345; Kaehler v. Dobberpuhl, 60 Wis. 256; Sullivan v. Colby, 71 Fed. Rep. 460; Brooks v. Laurent, 98 Fed. Rep. 647. It is apparent from all these cases that where pleadings were involved they could only be used against the party whose pleadings they were, as evidence by way of admission made by him, and were open to explanation and rebuttal, unless sworn to with knowledge of the facts. This is shown also by the following authorities : 1 Wharton on Evid., (2d Ed.), Sec. 838; 11 Am. & Eng. Ency. of Law, (2d Ed.), 449, and cases cited, note 2; Farson v. Gilbert, 85 Ill. App. 364; Snydacker v. Brosse, 51 Ill. 357-63; Hunter v. Hunter, 111 Calif. 261-6; Blanks v. Klein, 53 Fed. Rep. 436-8.
From a careful consideration of the evidence in this record, we think that it fails to show such a state of facts as should estop the appellants Potter, Gormley and Hately. An estoppel such as is here relied on, to be binding upon the party against whom it is claimed, must be established by clear and convincing evidence, and is only sanctioned in order to prevent the perpetration of fraud, or to effectuate justice, and it must appear also before it can be invoked that the party seeking its application must have changed his condition or conduct in consequence of statements or declarations made or acts done by the party against whom the estoppel is invoked. Mills v. Graves, 38 Ill. 455-64; Hefner v. Vandolah, 57 Ill. 520-4; People v. Brown, 67 Ill. 435; Walls v. Ritter, 180 Ill. 616-20, and cases cited; Richolson v. Maloney, 195 Ill. 575-80; Knapp v. Jones, 143 Ill. 375-82; Keith v. Lynch, 19 Ill. App. 574; Seymour v. Richardson, 103 Ill. App. 625-8; Blanks v. Klein, 53 Fed. Rep. 436-8; Hunter v. Hunter, 111 Calif. 261-6.
In the early case of Mills, supra, which was a law case, the court, in speaking of estoppel, quotes from Lord Coke as follows :
“ That because it concludes a man from alleging the truth, it must be certain, to every intent, and must not be taken by argument or inference. That every estoppel ought to be a precise affirmation of that which creates the estoppel, and not by way of recital.”
And the court say :
“ It is a well-recognized rule that declarations, which were not acted upon, can never operate as an estoppel. * * * They are only sanctioned to prevent the perpetration of fraud and to effectuate justice.”
In the Hefner case, supra, in speaking of the essentials of an estoppel in pais, the court say :
“ The party estopped must have induced the other party to occupy a position he would not have occupied but for such acts and declarations.”
In the Knapp case, supra, the court, in speaking of the necessary elements of an equitable estoppel, among other things say :
’“There must be deception, and change of conduct in consequence, in order to estop a party from showing the truth.”
In the Walls case, supra, the Supreme Court, citing many previous decisions, say :
“ It is one of the fundamental principles of estoppel in pais that it can only be invoked by a person who has relied upon the statements or declarations made to him, and, relying upon them, has changed his condition with reference to the subject-matter of the statements or declarations upon which the estoppel is based.”
It is by no means clear from the evidence that appellants Potter, G-ormley and Hately knew of or gave any sanction to the allegations of the Phoenix Furniture Co. bill. Their connection with that suit may be fully explained by the fact that they were interested as to who was to be the receiver under the bill, in preventing a forfeiture of the lease and in a continuance of the Hotel Company’s business under the receivership.
There is no evidence that the appellees who are bondholders have in any way changed their condition or conduct in consequence of an}' of the allegations contained in the Phoenix Furniture Co. bill, nor does it appear that prior to the filing of the bill in this case any of them in any way acted to their detriment, or relied upon the allegations made in the Phoenix Furniture Co. bill, nor does the evidence show that by reason thereof either of them will be in any way defrauded or any injustice done them, but on the contrary they can and will enjoy every right, legal and equitable, to which they were entitled as holders of said first bonds, and the same is true as to the Fitchburg Steam Engine Go. with regard to its mechanic’s lien, the claim of its counsel to the contrary notwithstanding.
Moreover, no question of estoppel was raised before the master, nor by any objection or exception to his report, nor was it in any way set up in any of the pleadings of the appellees, except in the following that appears in the answer of the Fitchburg Steam Engine Go., viz; ■
“ That Northern Trust Company,' Equitable Trust Company, and the holders of said first and second bonds have, in various proceedings and pleadings filed by them, admitted ■and conceded that all of said first bonds were discharged, canceled and paid, except said sixteen bonds, as aforesaid, and having so admitted the same, are now estopped to deny it.”
Even if this statement is sufficient as a pleading of estoppel, the matter not being brought to the attention of the master by way’of objection to his report, nor specifically raised by any exception before the court, it should be considered as waived. Springer v. Kroesehell, 161 Ill. 358-71; Whalen v. Stephens, 193 Ill. 121-32; Kinsella v. Cahn, 185 Ill. 208; Bishopp v. Blair, 90 Ill. App. 64; Rittenkouse & E. Co. v. Barry, 98 Ill. App. 548.
As a general rule any matter relied upon in equity as a defense must be stated in the answer, and it is not sufficient to be availed of as a defense, although it appears in the evidence. Home Ins. Co. v. Myer, 93 Ill. 271-4; Crone v. Crone, 180 Ill. 599-606, and cases cited.
Especially is this true when an estoppel is relied upon in equity as a defense and it is such that it can be pleaded. It should be directly and precisely alleged and must be pleaded with particularity and certainty. Mills v. Graves, 38 Ill. 455; Maxwell v. Longenecker, 89 Ill. 102; Faris v. Dunn, 7 Bush (Ky.), 276-87; Botna, etc., Bank v. Silver City Bank, 87 Ia. 479-83; Trover v. Dyar, 102 Ind. 396-9; Dean v. Crall, 98 Mich. 591-3; Central Bank v. Doran, 109 Mo. 40-51; Mabury v. L., etc., Co., 60 Fed. Rep. (C. C. A.), 645-56; Newhall v. Hatch, 55 L. R. A. 673-87 (Calif.); Cole v. Lafontaine, 84 Ind. 446-8; 8th Am. Enc. P. & Pr. 10, and cases cited.
In the Maxwell case, supra, it was held that a plaintiff in assumpsit who relied upon an estoppel must plead it specially.
In the Cole case, supra, the Supreme Court of Indiana say:
“ A party relying upon an estoppel in pais must plead with particularity and certainty the facts constituting the alleged estoppel. It is a defense to be affirmatively pleaded and to be pleaded with certainty, for intendments are not made in its favor.”
In the Doran case, supra, the Supreme Court of Missouri holds that an estoppel in pais must be pleaded in order that advantage may be taken of it on the trial, and say :
“Hot only must the estoppel be pleaded, but this must be done with more certainty than is requisite or will suffice in ordinary defenses.”
In the Dean case, supra, the Supreme Court of Michigan seems to have considered this question very carefully, and held that the rule requiring an estoppel to be pleaded did not apply to actions at law, but say :
“ It is a settled rule in Michigan that in equity cases an estoppel wipais must be pleaded, where it constitutes the basis of a right to sue and ground of relief, or is relied upon as a defense.”
While our Supreme Court does not seem to have passed directly on the question in a chancery case, it seems clearly in accord with the general principle announced in the Illinois cases cited supra, viz., that a defense, in order to be availed of. must be stated in the answer; and therefore we are of opinion the estoppel here, in order to be availed of, must"be pleaded; and since estoppels, as was said in the Mills case, and in the Keith case, supra, are odious, they should be pleaded with certainty and particularity.
We regard the pleading of the Fitchburg Steam Engine Co. as insufficient because it is entirely too general—lacks that particularity and certainty of statement which would be notice to the appellants of the particulars of the estoppel sought to be relied upon as a defense. It is, however, unnecessary, as we think, to place the decision upon this insufficiency and lack of pleading, since appellees, by not bringing this defense to the attention of the master in any way, nor by raising it specifically by any exception to the report upon the hearing before the chancellor, should not have been permitted to urge it. 1
Inasmuch, therefore,'as there was no intention on the part of any of the holders of the $216,000 of first bonds, nor of the committee under said first agreement representing the same, to cancel the bonds, nor to surrender them and take second bonds in payment, nor any sufficient basis in the evidence to estop ¿ippellants Potter, Gormley and Hately, we are of opinion that the learned chancellor erred in rendering the decree he did as to said $216,000 of bonds.
The ten first bonds which were found by the master and the court to be held by the appellants Potter, Gormley and Hately as collateral security for a note of $5,000, executed by the Hotel Company, were properly found to be a lien and secured by said first trust deed, as were also the sixteen bonds held by the appellee bondholders, together with interest thereon. None of these twenty-six bonds was surrendered to the Equitable Trust Co. or exchanged for said second bonds, pursuant to the terms of said first agreement, as were the other $216,000 of said first bonds, but for the reasons heretofore stated, and because the said first trust deed provides for a “ ratable payment ” of all said first bonds thereby secured, we think the holders thereof are entitled to the same lien and no greater than that of the holders of said $216,000 of first bonds. This lien should, however, be subject, first, to the payment of all costs, including the master’s fees, to which reference will be later made; second, the lien of the Northern Trust Co. for $1,000 for its trustee’s and solicitors’ fees, the Equitable Trust Co. $500 for its services and complainants’ solicitors’ fees $7,500, and, third, to the amount found due by the master for advances made by appellants Potter, Gormley and Hately for rent, insurance and taxes, to wit, $40,899.44, and interest thereon at five per cent per annum from July 1, 1901, the date of the master’s report.
The claim of appellants that interest at seven per cent should be allowed them on amounts paid for rent, insurance and taxes, is not sustained by the record. The master allowed seven per cent interest on payments for insurance and taxes, and five per cent on payments for" rent. They were entitled to no more under the terms of the firs't trust deed. They are not claiming under the second trust deed, which would entitle them to seven per cent interest on all these advances. From the date of the master’s report they are only entitled, under the statute, to five per cent on the amount found by the master.
The allowance of $3,068.80 interest to the appellants Potter, Gormley and Hately as holders of said ten first bonds as collateral security for the $5,000 note of the Hotel Company was, in our opinion, erroneous. After the most diligent examination of the evidence bearing on this item of interest, guided by the arguments of counsel, we are unable to discover any basis for its allowance. Ho doubt this $5,000 note secured by these ten bonds is confused with another $5,000 note mentioned in the evidence, which was purchased by John O. Carroll of the Chicago Hational Bank. The latter note, as we read the evidence, the date and terms of which are shown in evidence, is made the basis of this interest allowance, but it is now owned by said Carroll and not by the appellants Potter, Gormley and Hately. There is nothing in the evidence that we can discover which shows the terms of the note for which the said ten bonds held by Potter, Gormley and Hately were collateral security, and therefore no interest on that note should have been allowed.
The finding of the master and chancellor of the amount due the Fitchburg Steam Engine Company, to wit, $8,253.36, is correct, and that company is entitled to a lien by virtue of the decree in its favor for a mechanic’s lien, subject, however,1 to the liens of said first bondholders as above stated, and the other liens prior thereto.
The claims of the holders of said second bonds, as found by the decree, were proper, and their liens were subject to the other liens hereinabove specified; but whatever may be realized by the holders of said $216,000 of first bonds should be credited upon the amounts found due to them as holders of said second bonds.
The appellants Potter, Gormley and Hately, and the appellees who are holders of said first bonds, are entitled to a decree against the Hotel Company that it pay all the aforesaid liens in the order in which they are specified, and in default thereof to a sale of the mortgaged premises, and in case of any deficiency after such sale, to a judgment for the same.against the Hotel Company, and execution thereon.
It is urged by appellees on cross-errors that the chancellor erred in overruling the motion of appellee Tolman to suppress and disregard the report of the master in chancery as to his conclusions of law and fact, because it was prepared by one of the solicitors of the defendants, and that it was also error to allow the master $1,635.18 for his services other than taking the testimony in the cause. We think the record presents no error in this regard.
It appears from the evidence taken before the chancellor upon the matter of the master’s fees, several weeks after the chancellor had announced his decision upon the merits of the case in favor of the appellees, that one of appellant’s solicitors, at the suggestion of the master, though without any intimation from him as to what his report would be, drew up a draft of findings of fact and conclusions therefrom, which was submitted to the master several days before he made his report. The master, however, gave no notice to appellees’ solicitors that he had made this suggestion to appellants’ counsel, nor did he make any suggestion to appellees’ solicitors that he desired any draft of report from them; and it does not appear that they had any knowledge that such a draft of report had been submitted to the master until the time of the hearing before the chancellor as to the master’s fees. When the master received this draft of report he considered it 'for three or four days, and the report that he made and which was filed in court is substantially the same as that submitted to-him by appellant’s solicitor. He says he did not make any material changes in it.
The master submitted a detailed statement of his services in the cause, commencing on January 19,1900, and closing July 5, 1901, which shows continuance of the hearing on twenty-six different days, and hearings on thirteen different occasions. The cause was argued before him two full days, and the master testifies that he took several weeks in the consideration of the pleadings, the testimony and authorities bearing upon the questions presented, and gave three or four days to a consideration of the draft of report after it was submitted by appellant’s counsel, and that §2,500 for the services he rendered in the case, considering its importance and magnitude, would not have been unreasonable. His total charge was §1,795, which includes §159.82 for testimony, as to which no question is made. The court also heard the testimony of IT. L. Wait, a master in chancery of the Circuit Court of Cook County for more than fifteen years, who testified that the services rendered by the master were reasonably worth at least §1,800. Also an attorney who testified that he was familiar with said matters by his experience of twelve years, said that the usual fee of a master for such services would be §2,500. The chancellor, after consideration of the evidence, criticised the action of the master, but absolved him from all intentional wrongdoing, and stated that there was nothing 'in the case “ to reflect upon his integrity in the matter of the preparation and submission of the report,” and that from the evidence he considered the charges of the master not unreasonable. He also stated that the case 61 required before the court some four weeks of argument,” and that he spent two days in verifying the authorities and writing an opinion.
We think the course pursued by the master in suggesting to appellants’ counsel to make a draft of findings and conclusions, without notice to the opposing counsel, is not to be commended, notwithstanding there is evidence tending to show that this has been common among masters both in the state and federal courts. The decision of the master should be above all possible suspicion of bias or improper influence, direct or indirect, from counsel in the case. However honest and desirous a master may be of reporting strictly according to the law and evidence, such a course as was here pursued is liable to cause his fairness to be questioned by the unsuccessful party and his counsel. Besides, we think the practice of asking counsel to prepare a draft of report and conclusions is likely to make the report more voluminous than necessary. Its language would naturally be that of the advocate and show the bias and interest of the solicitor, whereas it should state tersely and plainly, though fully, conclusions of fact and law, without any amplification of the theories of counsel or of argument to support the conclusions stated.
We are unable to say, in view of the many facts,-questions of law, conflicting interests and the large amounts involved, and of the evidence bearing upon the services of the master, that the chancellor was manifestly wrong in allowing the amount he did to the master. For all that appears in this record the chancellor took into consideration the fact that the draft of report was made by appellant’s solicitor and fixed the master’s fees - accordingly. The finding of the chancellor in this regard is therefore affirmed.
In view of the conclusions stated it is unnecessary to discuss other matters urged by counsel. The decree of the Superior Court is reversed and the cause remanded, and that court is directed to enter a decree foreclosing said first trust deed for the several amounts above stated, for payment of the same in the order hereinabove specified, and that the appellees who are holders of said first bonds, and the Fitchburg Steam Engine Co., pay the costs of this court and the Superior Court in proportion to the amounts of their respective liens.