106 Ill. App. 114 | Ill. App. Ct. | 1903
delivered the opinion of the court.
This is a writ of error prosecuted to reverse a decree of the Circuit Court directing the distribution of rents of certain mortgaged premises collected by a receiver. Under foreclosure proceedings by a second mortgagee a receiver was appointed and soon thereafter the first mortgagee instifcuted foreclosure proceedings against the same property and the receivership of the first suit was extended to the second, with an order, acquiesced in by all parties to both proceedings, directing the receiver to collect the rents and hold them until the right thereto as between the first and second mortgagees should be determined by the court.
It is contended by the plaintiff in error that the defendants in error bould have collected their deficiency decree if they had been diligent in enforcing its payment by the Fetters. It is, however, conceded by her counsel that a mortgage may be and frequently is so drafted as to give a mortgagee an express .lien upon the rents arising from the mortgaged property. It is the law of this state that a mortgagee has no specific lien upon the rents and profits of the mortgaged lands unless he has in his mortgage stipulated for a specific pledge of them as part of his security. Yol. 1, Jones on Mortgages, Sec. 771.
The record before us is incomplete, in that it does not purport to state all the stipulations of the first mortgage, but upon the hearing of the petition filed in this case said mortgage was before the trial court, and without violence we may presume that therein the rents and profits were specifically mortgaged. If so, such stipulation authorized the appointment of a receiver in the discretion of the court, without regard to the solvency of the mortgagors. First Nat. Bank v. Ill. Steel Co., 174 Ill. 140; Loughbridge v. Haugan, 79 Ill. App. 644.
Presumptions which are reasonable and not negatived by the petition must be indulged in favor of the decree ordering the rents to be applied in payment of the deficiency decree. Upon well established principles, it must- be held that in the absence of a complete record the decree of the court will be supported by every reasonable intendment and presumption. Culver v. Schroth, 153 Ill. 437.
The record must fully and fairly present all matters necessar)?- for a decision of the questions involved in the assignment of error.
It may be urged that the mortgage was no part of the petition and therefore that the conditions of the-mortgage can not now be considered in determining whether the court decided properly in sustaining the demurrer to the petition. This suggestion is disposed of in either one of two ways. First, the petition was not a formal and original pleading, but was simply a document filed in the original proceedings by one of the parties thereto asking for the payment of moneys collected by the receiver in the language of the petition pursuant “ to a decree theretofore entered in the same case.” It certainly follows that the decision of the court upon the propriety of such an interlocutory motion or prayer involved an examination of any and all parts of the orders, decrees and files of the case, a part of which is the trust deed in question. From the very fact that the petition was filed in the foreclosure proceedings by the complainant therein, and thereby but urging and repeating the prayer of her original bill, by implication there were incorporated in it all parts of the original proceedings which related to and were germane to the subject-matter contained in the petition, and it is especially true that the court in considering the petition was justified in looking beyond the petition, because the petition requests the court to grant its prayer pursuant to the decree theretofore entered in that same cause. Second, the petition does not purport to set out the substance of the decree therein referred to, nor does it purport to set out the decrees and orders entered in either of said foreclosure proceedings which refer to the disposition of the rentals or of the orders referred to in said petition. It is entirely possible and even probable that an inspection of the decrees referred to would reveal the ground upon which the trial court acted in entering the decree providing for the distribution of rents collected by the receiver in this case.
It appears from the petition that the first mortgagee made some showing which moved the court to appoint the receiver in this case and it is to be presumed that the grounds were sufficient to warrant such appointment and it may be that those grounds were found and stated by the court, and doubtless were so stated, in the decree appointing the receiver. That decree was before the trial court, but is not found in this record. It is true the portion of the decree shown recites that questions relating to the final distribution of rents would be reserved, but there is no intimation that the findings of the court upon which the appointment of the receiver was made would be reviewed when the question of the distribution of the assets in the hands of the receiver was considered. The order appointing the receiver was final so far as the mortgagees’ right to have him appointed is concerned. In First National Bank v. Illinois Steel Company, supra, it is said that a court of equity has power to appoint a receiver and grant equitable relief where there are no express words in the mortgage giving a lien upon rents and profits derived from the property. In such a case, whether relief will be granted is dependent upon the facts and circumstances at the time application is made. Such action will not be taken, however, unless it be made to appear that the mortgaged premises are an insufficient security for the debt and the person liable personally for the debt is insolvent or at least of very questionable responsibility. Haas v. Chicago Building Society, 89 Ill. 498.
In the case at bar the petition states that the mortgagors giving the first mortgage were abundantly solvent and had a large amount of property in Cook county in their possession not exempt and subject to execution. If the petition is true in that regard,- although its statement is not to be taken as sufficient to set aside the decree of appointment if based in part upon the insolvency of the mortgagors, still in order to reconcile such statement with the appointment of a receiver under the first trust deed, it is to be presumed in this case that said trust deed did contain an express grant of the rents and thereby was created an express lien thereon in favor of the deficiency decree.
It is suggested that the property under the foreclosure sale was bid in atan amount less than its real value. There is no force in this suggestion» There is no averment in the petition which will lead us to assume that the premises were worth more than the amount realized at the sale. Roach v. Glos, 181 Ill. 440. And finally, it is stated ii\ the petition that plaintiff in error is informed that defendants in error have made some arrangement by which some property other than the premises in question were released from the general lien of the deficiency decree. It is sufficient answer to say that if the defendants in error had a specific lien upon the rents in question, they had sufficient security, and it was their privilege and right to release all other property from the general lien of the deficiency decree. In view of the absence from this record of certain orders, decrees and files, relevant and necessary to be considered in determining the validity of the decree, and in view of the reasonable presumption in favor of the decree arising by implication of law and from the averments of the petition, we are of the opinion that the decree ought to be affirmed.
The decree of the Circuit Court is affirmed.
