Patterson v. Patterson , 89 Ill. App. 406 ( 1900 )

Mr. Justice Adams

delivered the opinion of the court.

The objections of appellants’ counsel are, first, that Thomas E. Patterson did not assume the indebtedness secured by the trust deed; second, that the bill does not allege delivery to Patterson of the deed running from McBain to him; third, that there is no proof of the mistake in the description of the premises, as alleged in the bill, notwithstanding which the decree directs sale of the U. W. \ of the If. E. fractional J, etc., as if the mistake had been proved, instead of ordering sale of the If. E. fractional etc., as the property is described in the trust deed; fourth, that the decree is excessive.

In making the first and second objections, appellants’ counsel assume that the decree is, in substance, a personal decree against appellant Thomas E. Patterson, for a deficiency on a sale of the premises. Counsel argue that the master having found that Patterson assumed the indebtedness secured by the trust deed, and also that the amounts found due by the report were due from Patterson to the complainants, and the court having confirmed the master’s report, the decree is, in substance, against Patterson for a deficiency. This position is untenable. The decree is wholly in rem. It is not even a conditional decree for payment of a deficiency, as it might be by virtue of section 16 of the mortgage act. Whether there will be a deficiency can not be known until after the sale, for until after that time there can be no final decree for a deficiency. Bartling v. Thielman, 183 Ill. 88.

There was introduced in evidence a certified copy of a warranty deed from McBain to Thomas E. Patterson, of date December 11,1885, and recorded the same day, conveying an undivided ¿ part of the FI. E. ¿of the FI. W. ¿ and the FT. W. ¿ of the FI. E. fractional ¿ south of the Calumet river, etc., which deed contains the following:

“Subject, however, to an incumbrance of ten thousand dollars and the interest thereon, secured to be paid by a certain deed of trust bearing date December 10, 1885, executed by the grantor herein to Frederick W. Packard, as trustee, which incumbrance of ten thousand dollars, and the interest thereon, the said Thomas E. Patterson hereby assumes and agrees to pay, and is a part of the consideration above named,” etc.

September 23,1888, Thomas E. and Clara W. Patterson, by warranty deed of that date, conveyed to the Chicago & Calumet Terminal Railway Co. an undivided ¿ part of part of the FT. ¿ of the FT. W. ¿ and of the FT. W. ¿ of the FT. E. ¿ of Sec. 2, Town. 36, etc., describing land conveyed by metes and bounds. The master found, and there is no objection or exception to the finding, that the premises conveyed by Patterson and wife to the railway company are part of the premises in question, and which were conveyed by McBain to Thomas E. Patterson, as above stated. We think this prima facie evidence of the delivery to and acceptance by Patterson of the deed from McBain. The decree, in so far as it orders a sale of the property by the description alleged in the bill to be the true description, without proof of the alleged error in drafting the deed, is erroneous. The effect is, that, under the decree, a sale will be made of less land than that described in the trust deed, of the 1ST. W. i of the N. E. fractional J south of the Calumet river, instead of the if. E. fractional J south, etc., but there being no deficiency decree against appellants, or either of them, and no certainty that there ever will be, we do not think that they are in a position to take advantage of the error. So far they are in no way prejudiced by it, and error, without prejudice to the party complaining, is not ground for reversal.

The decree is for $12,449.87 and $350 as solicitor’s fees, while the master’s report, filed June 12, 1889, which the court confirmed, found due $12,391.97 and $350 as solicitor’s fees. The decree in this respect is erroneous. The decree should be for the amount found due by the master, namely, $12,391.97, with interest thereon in accordance with section 3 of chapter 74 of the statutes, and the further sum of $350 for solicitor’s fees. The decree was entered June 12, 1899; the date of the master’s report is May 15,1899. Interest on $12,391 97 from May 15tli to June 12th, 1899, twenty-eight days, at the rate of five per cent per annum, is $48.19; $12,391.97 plus $48.19 is $12,440.16, which latter amount is $9.71 less than $12,44 9.87, the amount of the decree. The decree will be affirmed as to the amount of $12,440.16 due the complainants, Caroline D. Ely, James E. Ely and Mary E. Miller, and the further sum of $350 for solicitor’s fees, and will be reversed as to $9.71, included in the amount $12,449.87, and the cause will be remanded for further proceedings in accordance with this opinion.' The parties respectively to pay their own costs of this court. Affirmed in part and reversed in part, and cause remanded.