Mann v. Harrison , 49 Ill. App. 403 ( 1893 )

Opinion of the Court,

Lacev J".

This is an original bill of foreclosure by Elizabeth Harrison, executrix of the last will and testament of George Harrison, deceased, v. Allen H. Mann and William T. Harrison and William Mann et al., to foreclose a mortgage given by William T. Harrison and Allen H. Mann to Thomas J. Hollister, and assigned to George Harrison, and also one given to George Harrison, deceased, William Mann being a junior mortgagee and also an equitable holder of an undivided one-half of the title, subject to appellee’s mortgage. There is no dispute as to the rigbtfulness to foreclose the mortgage in this case; we refer to the case of Allen H. Mann v. William Mann et al., No. 2530, in which we have filed an opinion at this term of court, which we refer to as a full explanation of the facts of this case. That case is a cross-bill filed in this, and for errors of the court below the decree has been reversed and cause remanded. The decree, in this case, so far as the foreclosure of the mortgage is concerned, is correct and without error, but the findings of the decree as follows, to wit: “ And the court doth further find, defendant William Mann, Iiolcls two notes against the defendants "William T„ Harrison and Allen H. Mann, each bearing date April 13, 1883, one for the principal sum of $500, and one for the principal sum of $2,300, falling due five years after, and drawing six per cent per annum, and that there have been no payments on the said notes, and that there is .now due to the said William Mann from the said Allen H. Mann and William T. Harrison, etc., the total sum of $4,441.32. And the court also ordereth that the surplus be brought into court and paid to William Mann,” etc. We find that the findings of the court, above set forth, so far as that there have been no payments made to William Mann, and the amount found due him, and the decree ordering him to be paid out of the surplus mentioned in the decree, are erroneous; therefore, the decree, so far as such erroneous findings and order are concerned, is reversed, but in every other particular, it is affirmed.