McCasland v. Allen , 1895 Ill. App. LEXIS 258 ( 1895 )

Mt?.. Presiding Justice Scofield

delivered the opinion of the Court.

Defendants in error filed a bill to foreclose a mortgage, which concluded with the general prayer for relief. ■ The notes and mortgage were attached to the bill as exhibits and were made a part thereof by express averment. The bill alleged a breach of the conditions of the mortgage, and that defendants in error had elected to declare the whole amount of the indebtedness due, as they had the right to do under the provisions of the mortgage. Under the general prayer the court could decree in favor of the complainants such relief as was appropriate, which in this case was the foreclosure of the mortgage for the amount due by the terms thereof.

James T. McCasland and Julia E. McCasland, the makers of the notes and mortgage, filed their answers to the bill. A decree pro confesso was rendered against David 0. Lusk, who filed no answer. The cause was referred to the master in chancery to take and report the evidence, together with his findings of fact and conclusions of law. The master made his report and the court rendered a decree based upon the master’s findings and conclusions, foreclosing the mortgage and ordering a sale of the mortgaged premises, to satisfy the amount due defendants in error under the decree.

Plaintiffs in error, the McOaslands and Lusk, have made the same assignment of errors and have presented two briefs, prepared by different attorneys, containing substantially the same arguments in support of their claim that the decree is erroneous and should be reversed. The first four of the errors assigned relate to the alleged insufficiency of the allegations of the bill, and the fifth and last to the alleged failure of the decree to find and declare the rights of Lusk as a party to the suit.

The master’s report finds that there is due to the complainants from the defendants, as principal and interest and taxes, the sum of $15,013.16; that a reasonable fee for complainants’ solicitors is $500, and that the mortgage should be foreclosed, and the premises described therein sold for the payment of these amounts. Mo exceptions were taken or filed to the master’s report, either before the master or in the Circuit Court; therefore plaintiffs in error can not allege in this court that the evidence taken by the master was not sufficient to support the findings of his report, or the decree of the court based thereupon. Cheltenham Improvement Co. v. Whitehead, 128 Ill. 279.

But it is said that the sum of $15,013.16, under the language of the decree, is in part for moneys paid on insurance, as well as for the amount due on the notes, and that no decree for insurance can be sustained, because of the insufficency of the allegations of the bill as to this item.

It is true that the decree finds that the sum of $15,013.16 is for the amount due on the notes, and for the amounts paid for “ taxes and insurance and interest on said sums,” but it is also true that the decree is based upon the master’s report, which is copied into the decree and made a part thereof, and that the master’s report finds expressly that the sum of $15,013.16 is for the amount due on the note and for taxes. The parts of the decree must be harmonized, if that can be done, and this leads to a rejection of the word “ insurance,” as having been used inadvertently in the preparation of the decree.

No part of the amount of the decree being for moneys advanced for insurance, we need not consider whether or not a decree for such moneys could be sustained under the allegations of the bill.

But it is said that the bill is not sufficient to allow a decree even for moneys advanced for taxes. The mortgage, which is a part of the bill, provides that, in any suit to foreclose the mortgage, the court may, “ on the motion of the plaintiff,” allow the creditors “ all sums advanced for taxes, assessments, insurance, or for any other proper purpose, in order to protect this security, with interest on such advances at the rate of eight per cent per annum.” The bill alleges, among other things, that there is due the complainants “ the taxes of the last year, which the complainants have paid.” These allegations were sufficient to authorize the allowance of moneys advanced for the taxes of one year, at least.

It is argued that the decree is for $239.91 more than the amount due on the notes and the taxes for the year referred to, with interest thereon. We decline to inquire into the correctness of this assertion, for two reasons: In the first place, no exceptions were filed to the master’s report, and the sufficiency of the evidence to support the findings can not be raised for the first time in this court. Cheltenham Improvement Co. v. Whitehead, supra. In the second place, no part of the evidence, which begins on the 21st page and ends on th,e 112th page of the record, has been abstracted, and we decline to search the record to ascertain whether the decree includes the taxes advanced for one or two years. C., P. & St. L. Ry. Co. v. Wolf et al., 137 Ill. 360; Joliet Street Ry. Co. v. McCarthy, 42 Ill. App. 49; McGillis et al. v. Anderson, 44 Id. 601.

Moreover, we are unable to see why moneys advanced for taxes may not be allowed without further allegations on the subject in the bill than the provisions of the mortgage when that instrument is made a part of the bill, just as is done with reference to solicitor’s fees under the authority of such cases as Telford v. Garrels et al., 132 Ill. 560, and Dates et al. v. Winstanley et al., 53 Ill. App. 623. At the same time it is proper to suggest that bills for foreclosure should be framed with such care as to prevent a litigant, who has no defense on the merits, from raising these questions in an appellate court." The safe way is the best way; and the safe way is to claim in the bill specifically those items for which a foreclosure is desired. • .

One other point remains to be considered. It is said that the decree is erroneous in leaving Lusk’s position undefined and his rights unadjudicated.

The amended bill alleges that Lusk claims some interest in the real estate described therein as a “ subsequent grantee.” The decree pro confesso against this defendant apiounts to a finding that he is a subsequent grantee, whose risrhts are subordinate to those of defendants in error, but who has, nevertheless, the right to redeem from a sale of the premises. It would have been better to make the finding of the decree more specific upon this point. As it is, however, Lusk’s position is sufficiently defined, and he can not have the decree reversed on this ground.

The decree is affirmed.