Clark v. John A. Logan Mutual Loan & Building Ass'n , 58 Ill. App. 311 ( 1895 )

Mr. Presiding Justice Waterman

delivered the opinion of the Court.

It is quite true that the market value of land is not the price that it would bring at a forced sale; neither is it the sum that people may think the property is worth. ' The market value of land is what the land would bring in the open market under fair conditions, reasonable effort to find purchasers being made and reasonable time allowed in which to effect a sale. The market value is perhaps best shown by sales of land similar in nature and situation. 14 Am. & Eng. Enc. of Law, 468; Lawrence v. Boston, 119 Mass. 26.

In the present case not only were the rents and profits of the land pledged for the security of the second mortgage, (Oakford v. Robinson, 48 Ill. App. 270), but it appears that the mortgagors are insolvent and the property meager and scant security.

¡Nearly two years must elapse ere a purchaser, under these foreclosure proceedings, can obtain title to the premises. Hot until fifteen months after a sale will the purchaser be entitled to possession. As a consequence a bidder must take into consideration the interest for that time on the money by him paid as well as the taxes that will in the meantime become payable.

It is manifest that no prudent trustee would now,, subject to the unpaid taxes, loan upon this property the sum to which the mortgages amount to nor would any court having control of a trust fund sanction such loan. While this is perhaps not in such a matter the best criterion as to the value of the property, it is indicative of the kind of security the holder of the second mortgage has.

It is urged that the affidavits as to the insolvency of the mortgagors are mere hearsay. There was quite conclusive evidence as to insolvency, aside from that presented by the affidavits. The fact of the default in the payment of interest, suffering the land to be sold for taxes, and the existence of three judgments with executions thereon, returned no property found, was, in the absence of any showing by the Clarks of their solvency, amply sufficient. It is not the case that the parties to this cause have, by contract, required or compelled the court to appoint a receiver. The parties made a contract which there is no reason why a court should not enforce. Hass v. Chicago Building Society, 89 Ill. 503; Nichols v. Peninsular Stove Co., 48 Ill. App. 317.

It is equitable that the claim of the mortgagees to these premises should be protected, and it would be contrary to equity that the, mortgagors should be allowed, after their default, to retain the rents and profits and thus to defeat the mortgagees in their effort to obtain from the premises the payment of what the mortgagors owe.

The order of the Circuit Court is affirmed.