Noe v. Witbeck , 1903 Ill. App. LEXIS 28 ( 1903 )

Mr. Justice Adams

delivered the opinion of the court.

Appellant’s counsel objects that there is no averment in the bill that appellant accepted the deed of the premises in question from the Dohertys, or any evidence that she took possession of the premises, as averred in the bill, or that appellee was the legal owner or holder of the notes at the time of their maturity, of that appellee ever elected to declare any unmatured principal sum due; that there is no evidence to sustain an item of $4.25 included in the amount found due by the master; that the amount allowed as solicitors’ fees is excessive and unwarranted, and that the court erred in appointing a receiver.

It is averred in the bill that the Dohertys “ executed and delivered to one Sarah Dexter Noe” their warranty deed of the premises described in the trust deed. This is a sufficient averment. A delivery necessarily imports a recipient. Appellant does not deny the delivery to her, or that she accepted; but impliedly admits acceptance of the deed. She avers in her answer that she is the owner of the premises, but denies liability “ by reason of the execution or delivery to her of any deed by the said John A. Doherty, or' the said Maggie A. Doherty.”

On the hearing before the master the following occurred :

Q. “ Have you got the deed with you, Mr. Coombs, the deed from Maggie A. Doherty and John A. Doherty to Sarah Dexter Hoe, conveying the real estate described in the bill ? ”

Mr. Coombs : “ Ho, sir, I have not.”

Q. “ Mrs. Hoe has the deed, or you have it for her ? ”

Mr. Coombs: “ My impression is that it has been returned from the recorder’s office. It is either in her possession, or it has not been returned from the recorder’s office.”

Mr. Coombs, appellant’s solicitor, then said he had no objection to the putting in evidence a certified copy of the deed. Whether or not appellant went into actual possession of the premises, is immaterial. The notes were produced and put in evidence by appellee, and William H. Moore testified that the Dohertys executed the notes, and that they were delivered by him, the witness, to appellee. The filing the bill was a sufficient election by appellee to declare the unmatured paper due. As to the item of $4.25 contained in the master’s report as follows, “ August 16, 1901, cash advanced for abstract of title,” the evidence is that appellant’s solicitors advanced that sum, on behalf of the complainant, toward paying for an abstract of title. It is, however, sufficient to say that in the objections to the master’s report, which were made exceptions on the hearing, there is no specific objection to the $4.25 item, or any objection- sufficient to call the master’s attention to it. The provision of the trust deed in respect to solicitors’ fees is as follows:

“ And it is agreed the sum allowed and decreed for complainant’s solicitors’ fees shall be five per cent of the amount of the principal note hereby secured, and in no event less than one hundred dollars.”

The objection of appellant’s counsel is that there were two principal notes; that the provision quoted should be applied to the smaller, or $1,500 one, and that the fee should be, at most," $100. But in a prior part of the trust deed the following occurs : “ Now, therefore, this indenture further witnesseth, that the said party of the first part, for the better securing the payment of said principal sum of money, with interest thereon, according to the true intent and meaning of the said principal notes and of the said interest notes, and the prompt fulfillment of the covenants on the part of the said first party herein contained,” etc.; then follow the words of conveyance. The original trust deed put in evidence before the master, and returned by him to the lower court as an exhibit, has been produced before us. It is a printed form, with only such written words in it as are necessary to make it applicable between the parties to it, and in it the words “ principal note,” where they occur in the above quotation, are in print, and next after the “e” in the word “note” the letter “s” is written, making the words to read “ principal notes.” We think it clear that, in the provision for solicitors’ fees quoted supra, the letter “s” was omitted by mistake or inadvertence after the word “ note,” and that the parties intended five per cent of the principal notes and not of the “ principal note.” The parties evidently intended a criterion for the allowance of a solicitor’s fee, but the words “ principal note ” furnish no criterion, because there are two principal notes, and in this pater t ambiguity it seems impossible to determine on which of the notes, if either, to estimate the five per cent. The parties evidently intended to state an amount, five per cent of which should be allowed as solicitors' fees. In Siegel, Cooper & Co. v. Colby, 176 Ill. 210, the court say:

“ It is well settled that a court of law may, when there is an obvious mistake made on the face of the instrument which is corrected by other expressions therein, when the whole instrument is considered, construe it according to the evident intent.of the parties, as manifested by all the language used.”

In Packer v. Roberts, 140 Ill. 9, it is said, in connection with a review of many authorities on this subject, “ Inaccuracy of language which results from inserting a word not meant, or using the wrong word, will not be permitted to defeat the intention, when it can be distinctly ascertained.” See also, Packer v. Roberts, cited by the court, supra.

One witness testified before the master that the usual and customary fee for foreclosing a mortgage is five per cent of the amount due. Another testified that a fair, usual and customary fee would be from $400 to $500.

The trust deed contains the following provision :

11 And it is covenanted and agreed by and on behalf of said first party, and on behalf of said first party’s heirs, legal representatives, assigns and lessees of said premises, that upon or after the commencement of proceedings in any court to foreclose this deed of trust, as hereinbefore provided, a receiver may be appointed by such court, and continued in office to manage the aforesaid property, collect the rents and profits thereof, and apply the same to the costs, interest and debt hereby secured, as such court may direct, until the sale of said premises under the decree in such proceeding,” etc.

This provision clearly authorized the appointment of a receiver. McLester v. Rose, 104 Ill. App. 433, citing, among other cases, Loughridge v. Haugan, 79 Ill. App. 644, and First Nat. Bk. v. Ill. Steel Co., 174 Ill. 140. See, also, Bagley v. Ill. T. & S. Bank, 199 Ill. 76.

The sole objection of counsel to the appointment of the receiver is, that the court, after referring the cause to the master, was powerless to hear and determine the application for a receiver. This is rather a startling proposition, and is not in the least supported by Shack v. McKey, 97 Ill. App. 460, or Cox v. Pierce, 120 Ill. 556, cited by counsel. We think it too plain to require argument that the court, by referring the cause to the master, was not rendered powerless to appoint a receiver, as provided by the trust deed.

The decree will be affirmed.