Kehm v. Mott , 86 Ill. App. 549 ( 1900 )

Mr. Justice Windes,

after making the foregoing statement, delivered the opinion of the court.

It is claimed by appellants that it was error to appoint Emil E. Haase receiver, because he was a defendant. This contention, we think, is answered by the fact that it is stipulated in the trust deed being foreclosed that he might be appointed receiver; by the further fact that it does not appear from this record that he has any interest whatever unfriendly or inimical to appellants; and for the further reason that under the answer of appellants they deny that they have any interest in the premises. Iroquois Furnace Co. v. Kimbark, 85 Ill. App. 399, and cases there cited.

It is also claimed that it was error to appoint a receiver without notice. The record does not disclose that the receiver was appointed without notice, and we must presume, in the absence of such showing, that the court proceeded regularly and upon due notice. Moreover, appellants can not now urge error in this regard, because the record shows that they assented to the appointment of the receiver by calling upon the court to require him to take action as such receiver, and also because they had a hearing before the master and the court after they were served with process, and thus were accorded every benefit which they could have received by notice in the first instance. Iroquois Furnace Co. case, supra.

It is further claimed that the court erred in settling by its decree, as it is claimed it did, adverse titles, in that the decree bars all equity of redemption of appellants in said premises, in case of a sale and failure to redeem therefrom, and provides for a writ of assistance to place the grantee in the master’s deed issued after such failure to redeem and demand of possession by him and a refusal to comply with such demand. Gage v. Perry, 93 Ill. 176, and other similar cases are cited by appellants as sustaining this contention. The difficulty, however, is not with the law as announced in these cases, but the application of it to the case at bar. As we have seen, the bill alleges that the appellants have, or claim to have, some interest or lien upon the premises in question. This allegation is squarely denied by appellants’ answer, and their answer does not set up what interest, if any, they have in the premises. There is no proof in the record to show that appellants have any interest.', Complainant was not obliged to prove that they had an interest, claim or lien upon the premises when appellants denied the allegation in that regard by their answer. Moreover, as we have seen, the bill alleges that if appellants had any interest or lien, it was subject, subordinate-and inferior to the lien of complainant. If appellants had any claim or interest in this real estate, in view of the allegations of the bill above stated, it was incumbent upon them to allege and prove the same. 2 Jones on Mortgages, Secs. 1473-4; Sichler v. Look, 93 Cal. 608; Hoes v. Boyer, 108 Ind. 494; Drury v. Clark, 16 How. Pr. 430; Montague County v. Meadows (Tex.), 42 S. W. Rep. 326; Thompson v. Morris, 57 Ill. 333-8; Finch v. Martin, 19 Ill. 105-12.

Even if it could be said the fact that appellants had a master’s certificate of purchase of the real estate showed an interest in appellants, it does not appear what it was, or that it was in any way adverse to the lien of appellees. It appears from the record that this certificate was in the possession of appellants’ solicitor. He did not produce it, and it will therefore be presumed, as against appellants, that the proof it might afford would not be favorable to them.

Lastly, it is contended that it was error to allow complainant $350 solicitor’s fees, because his solicitor in the Circuit Court was also successor in trust. This claim is, in our opinion, fully answered by the fact, which appears from the evidence, that Mr. Munroe never accepted the appointment of successor in trust under the trust deed, and never acted as such. Gray v. Robinson, 174 Ill. 242, is not in point. In that case the trustee in the trust deed was a co-complainant in the case, accepted his appointment as trustee, and in that capacity, of his own volition, became a party complainant in the proceeding.

The decree of the Circuit Court is affirmed.