| Ill. | Oct 26, 1903
delivered the opinion of the court:
In this case the complainants filed to the answer of appellant a pleading in the ordinary form of a general replication, which, however, is unsigned. Appellant argues that under these circumstances the answer must be treated as true, and refers to the case of Gruenberg v. Smith, 58 Ill. App. 281" date_filed="1895-04-04" court="Ill. App. Ct." case_name="Grunenberg v. Smith">58 Ill. App. 281. In that case a hearing was had upon bill and answer. The law is well settled that where, as here, the defendant joins in taking proof, and a hearing is had upon the pleadings and proof without objection, the defendant thereby waives the filing of any replication whatever. Marple v. Scott, 41 Ill. 50" date_filed="1866-04-15" court="Ill." case_name="Marple v. Scott">41 Ill. 50; Durham v. Mulkey, 59 id. 91; Jones v. Neely, 72 id. 449.
The decree of the court below is attacked on the ground that an arrangement was made between John P. Altgeld, then president of appellant, and John R. Walsh, president of the Equitable Trust Company, by which three hundred bonds of the issue of 1895 were to be substituted for the bonds of 1891, to foreclose which this suit is brought. Gov. Altgeld testified that he had a conversation with John R. Walsh some time in the autumn of 1894, in which Walsh stated, in substance, that if the Unity Company would make a trust deed to the Equitable Trust Company to secure $400,000 in bonds of $1000 each and deliver them to the Equitable Trust Company, Walsh or his company would “see that the old bonds are surrendered and canceled,” and that Walsh at the same time stated that he and his' company controlled the old bonds, and that he would not only secure the substitution of the new bonds for the old ones, but that he would sell the additional bonds for the Unity Company, and, pending the sale, would advance the money for the additional one hundred new bonds. Walsh flatly denies that any such conversation ever took place or that any such arrangement was ever made. Whether such contract was entered into or not, it is apparent that the substitution never was made and that the old bonds never were canceled. There is no evidence in the record that at the time Altgeld says this conversation took place it was in the.power of Walsh to bind the then holders of the bonds. If it be true that he stated that he controlled the bonds, such statement would not be evidence against the holders, nor would such statement made by him cast upon them the burden of showing that he was not authorized to act for them, as is insisted by counsel for appellant. This record fails to show, therefore, any satisfaction of the bonds of 1891 or any substitution of the new bonds for the old bonds, or any valid agreement made between the Unity Company and the holders of the old bonds for the surrender of the old bonds and the substitution of the new ones.
The same reasoning applies to the contention that an agreement was made between Walsh and Altgeld, whereby the trust deed was not to be foreclosed immediately after the possession of the building had been delivered to the trust company. The record discloses no evidence of any power in Walsh to make any such, contract for or on behalf of the holders of the bonds of 1891.
Appellant states that John P. Altgeld was the owner of sixty-four bonds of the issue of 1895, which, at the time this suit was commenced, were held by the receiver of the Illinois National Bank as collateral security to a note of Altgeld’s for the sum of $35,000. Such ownership is proven, it is said, by the undisputed fact that Altgeld had possession of these bonds at the time he delivered them as security to the bank in question. As president of the Unity Company, Altgeld originally had possession of the entire issue of bonds of 1895. Three hundred of those bonds he deposited with the trust company to be exchanged for the old bonds. He says that Walsh refused to advance the money on the remaining one hundred bonds when he was requested to do so, and that he, Altgeld, thereupon borrowed from the Chicago National Bank $35,000 and deposited sixty of these bonds as collateral security, and afterwards withdrew ten of them. The loan at the Illinois National Bank was obtained to take up this note at the Chicag'o National Bank, and when the note for the money so obtained for this purpose was given, sixty-four of the new bonds were deposited as collateral to Altgeld’s note. We think it evident that John P. Altgeld, as the president of the Unity Company and for the Unity Company, was endeavoring to sell the additional one hundred new bonds, and, failing a sale, was engaged in borrowing money thereon for the purposes of the company. He had possession of these bonds as the officer of the company. His possession of them under the circumstances is no evidence that he owned them, and does not show that he was a necessary party to this suit. We do not determine who is the owner of the equity in those sixty-four bonds. All we decide in reference thereto is, that there is no evidence in this record that such equity is the property of Altgeld or his estate.
The Unity Building- stands on ground which was leased by John P. Altgeld from the owner thereof at an annual rental of $18,000. This leasehold interest was transferred by Altgeld to the Unity Company and is the interest covered by the trust deed of 1891. This suit is to foreclose an interest in real estate which had been conveyed by John P. Altgeld. He was the assignor of appellant, but was not on that account a necessary party to this suit. He retained no interest in the real estate, but had he done so he would not- have been a necessary defendant, because the foreclosure proceedings can only affect the interest which had passed to the Unity Company, and not that which Altgeld retained; and the fact that he remained liable for the payment of the rent on the original lease, if such liability remains, in nowise alters the situation. This suit does not affect the liability of the Unity Company for the payment of rent to the owner of the fee.
A solicitor’s fee of $7500 was allowed to complainants for their solicitor’s fee herein, under a provision in the trust deed. This is objected to on the ground that the proof fixing the amount thereof was taken just prior to the close of the complainants’ evidence in chief before the master, at a time when it was not known and could not be known what services would be rendered by complainants’ solicitor, and that, therefore, no basis existed upon which any fee could be fixed. Complainants followed what we believe to be the invariable practice in foreclosure suits, which is to take the proof fixing the value of the solicitor’s fee with the other evidence in chief to support the bill. In taking the proof at that time it is necessary to anticipate the work thereafter to be done by the solicitor, and it is entirely proper for the witness on the part of the complainant to state in detail, and if he fails so to do, for the cross-examiner to ascertain exactly what services thereafter to be performed are covered by the fee fixed by the witness. After the hearing and prior to the passing of the decree, if it appear to the court that anticipated services were not rendered or that services were rendered that were not anticipated, it will be proper to again refer the matter of solicitor’s compensation to the master, that he may take evidence and.make a finding that will fix the fee at a proper amount. In a foreclosure suit the duty of complainant’s solicitor is not ended, in case there is a sale, until he has attended upon the sale, secured the distribution of the proceeds of the sale and a decree approving the master’s report of sale and striking the case from the docket. It is impossible, therefore, that the taking of the testimony t.o fix the value of his services should be postponed until the services are all rendered.
Among other items covered by the amount fixed for the solicitor’s fee in this case was an investigation of the question of ultra vires in reference to the first bonds and trust deed, and as no such defense was made by answer, it is urged that compehsation for that investigation should not have been included. When the trust deed which this bill was filed to foreclose and also when the bonds which it secured were offered in evidence, appellant objected because the execution of the trust deed and the bonds for the purpose for which they were executed was beyond the power of the Unity Company. We are therefore of the opinion that the service in question was properly included among those for which an allowance could rightfully be made under the trust deed.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.