Stevens v. Hadfield , 90 Ill. App. 405 ( 1900 )

Mr. Justice Sears

delivered the opinion of the court.

The order of April 5, 1897, which is now reviewed by this writ of error, was considered by this court in a former appeal, Stevens v. Hadfield, 76 Ill. App. 420, and it was there held that the order was a final order, and the propriety of it could not be questioned on that appeal. It is questioned by this writ of error.

Errors and cross-errors assigned call in question the following items allowed or disallowed by the court below.

1st. Interest paid upon a first mortgage, senior to the mortgage foreclosed in the suit here. This item, amounting to $17.50, was property disallowed. The purchaser at the foreclosure sale took the title with all its infirmities and burdens, and it was not for the receiver to apply the rents and profits accruing during the period of redemption to the removing of such infirmities or burdens for the benefit of such purchaser. Davis v. Dale, 150 Ill. 239; Stevens v. Had-field, supra.

The fact that Hadfield, the owner of the equity of redemption, to whom these rents and profits primarily belonged, was obligated upon certain covenants in a deed to pay this first mortgage, does not operate to avoid the conclusion. His liability may be enforced by appropriate action, but not by the voluntary act of this receiver. This item was properly disallowed.

2d. The sum of $702.15, paid by the receiver for taxes. The same reasons which preclude the receiver from assisting the purchaser at the foreclosure sale by an application of the rents and profits accruing during the period of redemption upon the first mortgage lien, also preclude him from assisting here in the matter of taxes. This item was also properly disallowed.

3d. By assignment of cross-errors the allowance of the sum of $1.00 as solicitor’s fees is questioned. There was no conflict of interests here between the complainant in the suit to foreclose and the receiver. Hence we perceive no impropriety in allowing this item to the solicitor of the receiver, although he was also solicitor for complainant in the bill to foreclose. This item was properly allowed.

4th. Ho sufficient showing is made why the item of $20 for interest on the deficiency decree should not have been allowed. We think it a proper allowance, so far as we can determine from the evidence presented.

5th. The amount allowed for insurance. We are unable to see whjr this item was not a proper one to be allowed.

6th. The amount allowed as commissions. One of the learned and able counsel for defendant in error was called as a witness as to the usual amount allowed in this behalf, and his own testimony is not widely variant from the amount fixed by the court below.

We are of opinion that the account as allowed is proper, and that the order allowing it should be affirmed.