Johnson v. Clegg ( 1905 )

Mr. Presiding Justice Ball

delivered the opinion of the court,

A solicitor’s fee in a foreclosure proceeding cannot be included in the costs unless it is authorized by the contract of the parties. In Conwell v. McCowan, 53 Ill., 364, it is decided that “The court erred in allowing for money advanced by the solicitor and his fee. They were not statutory fees or charges.” In Eimer v. Eimer, 47 Ill., 375, the Supreme Court say: “Under the practice of our courts, statutory costs alone are taxable, and attorney’s or solicitor’s fees not being of that character, this court has repeatedly held that it was error for the Chancellor to allow such fees or to decree their payment.”

In Clawson v. Munson, 55 Ill., 394, where the mortgage contained a clause that in case the sum of money received thereby was not paid according to the tenor and effect of the notes, the mortgagor would “pay all attorney’s fees for the collection of said sum of money,” and upon scire facias to foreclose the mortgage the trial court had included the sum of $110 as such reasonable attorney’s fee, the Supreme Court declared: “We can only say, that the appellants provided, by their express agreement, in the mortgage, for all the consequences that have followed, in case of default in prompt payment, and that they could have avoided all hardships by paying the note at maturity. It is not in the power of the court to relieve a party from the force and consequences of his own agreement.”

In Atwood v. Whittemore, 94 Ill. Appv 294, in a foreclosure proceeding the mortgage allowed $100 for attorney’s and solicitor’s fees. It also contained another provision, that “said grantor shall pay all costs and attorney’s fees incurred or paid by said grantee or the holder or holders of said note, in any suit in which either of them may be plaintiff or defendant, by reason of being a party to said trust deed or a holder of said note, and that the same shall be a lien on said premises, and may be included in any decree ordering the sale of said premises, and taken out of the proceeds of any sale thereof.” Wo evidence was offered to show that any costs or attorney’s fees were incurred or paid by defendant in error in any suit other than in this foreclosure suit. The decree included the sum of $500' as a reasonable solicitor’s fee. Upon appeal, we reversed the decree in this regard, saying: “In the absence of statutory provision, the entire matter of decreeing an allowance of any sum as attorney’s or solicitor’s fees in the foreclosure proceedings, to be paid out of the proceeds of foreclosure sale, rests solely upon contract. In the absence of any contract for such allowance, it could not be made.” (Citing cases.)

In Soles v. Sheppard, 99 Ill., 619, the mortgage provided for the payment of a solicitor’s fee in case of a fore- • closure. Being made a defendant in a suit to foreclose a prior incumbrance, the holder of the note filed an answer and a cross-bill. The decree gave him solicitor’s fees. The court, finding that the cross-bill was unnecessary, because the foreclosure of the prior mortgage afforded him full relief, held that the allowance of solicitor’s fees was reversible error.

The provision, “and . . per cent on the amount of such principal, interest and costs for attorney’s arid solicit- or’s fees,” is an agreement that nothing shall be paid for such services. Ho one, not .even the chancellor, has authority to fill that blank. If it were filled that act would be -a material alteration of the instrument and would render it void. In People v. Organ, 27 Ill., 27, a bond was signed and sealed with the penalty omitted. It was afterwards inserted with the consent of the principal, but without the knowledge of the sureties. The court held that the sureties were not bound, saying: “It (the bond) is then of a different tenor and is another instrument, as much so as if it was executed in a penalty for one sum and was changed to a different and larger sum.”

This specific provision being of no avail, appellees cannot support the decree in this particular by any general provision contained in the deed of trust relating to costs and attorney’s fees, such as “and also all, other expenses of this trust.”

' Henke v. Gunzenhauser, 195 Ill., 130, was a foreclosure suit. The trust deed provided a solicitor’s fee ,of $100. It was also agreed therein “that said grantors shall' pay all costs and attorney’s fees incurred or paid ■ by the said grantee or the holder or holders of said notes in any suit,” etc. The decree found and allowed $625 as a reasonable solicitor’s fee. This decree was reversed by this court. Upon appeal the Supreme Court held that while $100 was an unreasonably low solicitor’s fee, it was the contract of the parties and they were bound thereby; and that the first clause was clearly applicable to a foreclosure proceeding and to nothing else, while the second provision referred to suits “other than a proceeding to foreclose the mortgage.” The court said: “That the allowance of an attorney’s fee in this State rests solely upon a contract between the parties. If no attorney’s or solicitor’s fee is agreed to be paid, none can be allowed, and if there is an agreement to pay a certain amount, that amount limits the allowance, and it can not be increased, though if unreasonable it may be diminished.” See also ’Atwood v. Wliittemore, supra.

Appellants, to sustain their contention, cite Guignon v. Union Trust Co., 156 Ill., 135, (S. C. 53 Ill. App. 581). We think it is not here in point. In that case the mortgage contained this clause: “The mortgagor agrees to pay all expenses of such releases, as well as all other fees and charges of the said trust Company in executing this trust.” The court held that “The Company was not a lawyer, and could not, without the assistance of a solicitor, foreclose the mortgage, and whatever expense the Company incurred in foreclosing the mortgage, reasonable in amount, would in our opinion, fall within the clause of the mortgage, supra, providing for fees and charges.”

The decree also provides that in case a deficiency arises from the sale, appellee Wilkinson may have an execution therefor against said George Johnson and appellant. The debt is that of George Johnson only. Appellant, by reason of this indebtedness, may lose her interest in these premises, but she assumed no personal liability for this debt, and cannot be so held.

The decree of the Circuit Court is reversed and the cause is remanded.

Reversed and remanded.