Cheltenham Improvement Co. v. Whitehead , 128 Ill. 279 ( 1889 )

Mr. Chief Justice Craig

delivered the opinion of the Court:

No fault whatever is found with the amount due on the note secured by the trust deed, as determined in the decree, but it is insisted that the allowance of $1000 for money paid in the purchase of an outstanding tax title is erroneous, upon two grounds: First, because it was not claimed in the bill; and second, it is not a proper allowance under the evidence.

Upon an examination of the bill, the following allegation in regard to tax claims will be found:

“And further, your orator says, that in and by said trust deed the said Ira N. Herrick, for himself and his heirs", executors, administrators and assigns, covenanted that he and they would pay all taxes and assessments levied or assessed against the real estate in the said trust deed described, until the indebtedness secured thereby should be fully paid; but your orator shows, that owing to the neglect and default of the said Ira N. Herrick, or his assigns, a large amount of taxes and assessments is now due and owing on the said premises, and are a lien thereon, and that taxes and assessments have been allowed to go to judgment, sale, and deeds have been issued on said real estate, or a part thereof still remaining as security under said .trust, and for the indebtedness due your orator, as aforesaid.”

In addition to this allegation, the trust deed was attached to and made a part of the bill. If the bill had contained an allegation of the amount of the tax lien, and that the same had been paid by the complainant, it would not be subject to criticism; but the allegation, in connection with the terms of the trust deed, which is a part of the bill, is, in our judgment, sufficient upon which to predicate the evidence of the payment of the $1000 item embraced in the decree.

As to the sufficiency of the evidence to support this item in the decree, plaintiff in error is in no position to raise the question. The cause was referred to the master in chancery to take the proofs and report to the court. The evidence was taken and a report filed, but no exception was taken to the report of the master in regard to tax liens and payment of tax liens, either before the master or in the circuit court. If, in the opinion of the plaintiff in error, the evidence offered before the master was incompetent or insufficient to establish the claim, he was required to file exceptions before the master, and, if overruled there, renew the exceptions in the circuit court. Had this course been pursued, the objection now relied upon might properly be considered; but aá1 no exception was taken before the master, or in the circuit court, plaintiff in error is precluded from making the objection here. The master’s report must be held conclusive of all questions covered by it not excepted to. Pennell v. Lamar Ins. Co. 73 Ill. 303.

As has been seen, the court, in the decree, allowed complainant $260 for an abstract of title and expenses incurred in procuring data to foreclose the trust deed. We find no •clause in the trust deed which can, upon any reasonable construction, be held to authorize a claim of this character, and, in the absence of authority in the trust deed, the court had no power to allow the amount. It is true that the trust deed contains a clause which authorizes the trustee, upon sale of the mortgaged premises, in distributing the proceeds, to pay -certain specified claims, and “also all other expenses of this trust.” Whatever expenses the trustee might necessarily incur in making a sale of the property under the power or decree, such as advertising, or perhaps procuring an auctioneer, would be a legitimate charge on the fund derived from the sale; but we do not think the obtaining of an abstract was any part of the expenses of the trust. An abstract might be useful to the •attorneys who were employed to foreclose the mortgage, to furnish the names of persons who might have liens on the mortgaged premises; but at the same time, the mortgagor ought not to be charged with and compelled to pay for such information, unless it clearly appeared, from the mortgage, that he had agreed to do so, which is not the case here.

One other question remains to be considered, and that is, whether the solicitor’s fee of $719 was an element proper to be embraced in the decree. As heretofore stated, the trust deed provides, in case of default in the payment of the debt, or in case of the breach of any of the covenants of the deed, the party of the second part (the trustee named in the deed) is authorized, in his own name or otherwise, to file a bill to foreclose the mortgaged premises and to obtain a decree of sale, and from the proceeds of the sale the deed provides that five per cent of the amount of the debt shall be paid as solicitors' fees. It is not denied, if the bill had been filed in the name of the trustee, that the amount provided in the decree for solicitors’ fees would be a proper charge, under the terms of the deed of trust; but as the bill was filed in the name of the holder of the mortgage indebtedness, and not in the name of the trustee, it is claimed that the allowance was not authorized. We do not assent to this construction of the language used in the trust deed. The object in providing for attorneys’ fees in the trust deed was, in the event that the mortgagor should fail to pay the debt, and the holder of the indebtedness should be compelled to foreclose the trust deed in order to collect the debt, then solicitors’ fees should be allowed. What difference could it make with the mortgagor whether the bill should be filed in the name of the trustee or in the name of the holder of the indebtedness ? We do not see that the liability of the mortgagor could in any manner be changed, whether the bill was brought in the one name or the other. Moreover, the language of the deed of trust, giving it a fair construction, will not admit of the meaning attempted to be placed upon it. The solicitors’ fees are payable upon the filing of a bill in the name of the trustee, or otherwise. Some meaning must be given to the word “otherwise.” It can not be arbitrarily rejected. And we are of opinion that a fair and reasonable construction of the contract will fully authorize the allowance of solicitors’ fees, whether the bill was filed in the name of the trustee or some other person.

The judgment of the Appellate Court will be reversed as respects the solicitor’s fee named in the decree. In all other respects it will be affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.