Brown v. McKay , 51 Ill. App. 295 ( 1893 )

Mr. Justice Waterman

delivered the opinion oe the Court.

These exceptions require the court to search through the mass of evidence to determine if they are well taken. There is a neglect to point out what the evidence is upon the conelusions of the master, which the party disputes. Such a practice renders the report of the master of no assistance to the courf, and is one which the court is under no obligation to tolerate. Huling v. Farwell, 33 Ill. App. 238; Heffron v. Gore, 37 Ill. App. 257. Where a cause is referred to a master to take testimony and report his conclusions as to the facts, it is not proper for him- to do more than he was ordered, and it is irregular and improper to set forth the evidence in his report, without the special direction of the court. McClay v. Norris, 4 Gil. 370; Daniell’s Ch. Pr. 1300; Matter of Hemiless, 3 Paige 305; Mott v. Harrington, 15 Vt. 185; Goodman v. Jones, 26 Conn. 264; Gilmore v. Gilmore, 40 Maine 53.

Either party may have from the master certified copies of such portion of the testimony as either may desire to present to the court upon the hearing of exceptions. Hoff. Ch. Pr. 345; Donnell v. Columbian Ins. Co., 2 Sumner 366.

If, as in the present case, the court has ordered the master to return, with his report, the evidence presented before him (a practice, considering the overburdened condition of the courts, of very doubtful utility),, it is yet upon the facts as found by the master that the court proceeds, if it render a decree based upon such report. If either party is dissatisfied with the master’s- report, exceptions may be filed thereto; if the exceptions be to findings of fact, the evidence as to such facts should be set forth or pointed out with such directness that the court may readily find the same without searching through the entire evidence. Huling v. Farwell, supra; Heffron v. Gore, supra; Daniels’ Ch. Pr. 1300; Story v. Livingston, 13 Pet. 359. In the present case, the findings of the master are sufficient to sustain the decree. Appellants, in this court, urge that there was no evidence of the execution of the notes. This is a conclusion drawn by appellants from the evidence; what the evidence was they fail to point out. But, referring to the master’s report, we find that the execution of the trust deed was duly proven; that that instrument was made by the same person whose name appears thereon as the maker of the notes; it was, therefore, in the power of and competent for the master to compare signatures and conclude that the notes were signed by the person who signed the trust deed. Mr. McKay also testified that the notes produced before the master were those described in the bill. It was not necessary that the transfers of the property subsequent to the making of the mortgage, or the interests of the defendants, or that the trustee had been applied to to join with the cestui que trust in the filing of the bill, or the election to declare the entire amount due, should be proven. Cheltenham Imp. Co. v. Whitehead, 128 Ill. 279; 8 Eng. and Am. Enc. of Law, 193; Harper v. Ely, 56 Ill. 179; Hoodless v. Reid, 112 Ill. 105.

This writ of error is prosecuted after a sale has been made under the decree, at which sale there was realized the full amount of the decree, interest and costs. We are not aware of any authority holding that sale must be made in the inverse order of alienation, where the alienation was merely of an undivided portion of the whole.

It also appears that at the sale, any portion of the premises for which any person desired to bid was first offered; if any of the defendants wished to have first sold any particular portion, an opportunity was thus given to them; the property sold is yet subject to redemption. We find no error in the record warranting a reversal of the decree, or of any of the orders of the court below. We do find the decree to be equitable and in accordance with the law, and it, together with the order confirming the master’s sale, is affirmed.