Meinel v. Randolph , 1913 Ill. App. LEXIS 268 ( 1913 )

Mr. Presiding Justice Clark

delivered the opinion of the court.

A bill of complaint was brought to foreclose a trust deed executed by Josephine A. Bongard and her husband to Louis Henry, as trustee, to secure the payment of a note given by Mrs. Bongard. Among the defendants named in the bill as having or claiming some interest in the mortgaged premises were the plaintiffs in error, Charles W. Randolph and Emma Z. Randolph. The plaintiffs in error filed an answer, claiming that prior to the execution of the deed sought to be foreclosed in the present suit, a trust- deed had been given by Mrs. Bongard and her husband to Adolph Loeb, as trustee, securing the payment of a note in the sum of $5,500, on the property involved; that prior to the filing of the bill in the present cause, which was on April 5, 1907, plaintiff in error Emma Z. Randolph had brought suit for the foreclosure of the said trust deed, and such proceedings had been had that a sale of the property was made to said plaintiff in error Emma Z. Randolph. The answer further set forth that any rights or interests which the complainants, William Meinel and Louis Henry, as trustee, may have acquired in and to the property were subordinate and subject to the rights of the plaintiff in error Emma Z. Randolph, and that such fact appeared from the provisions, of the trust deed sought to be foreclosed in the present cause.

In the present case there seems to have been no reference of the cause to a master in chancery. The decree was entered March 11, 1910, reciting that the cause having been brought on to be heard upon the bill of complaint taken as confessed by certain of the defendants, and on the answer of the defendants Charles W. Randolph and Emma Z. Randolph (plaintiffs in error) and upon the complainants’ replication to said answer. The decree then proceeds: “And this cause coming on to be heard on oral testimony and documentary evidence introduced on behalf of complainants, and it appearing that all parties are properly before the court, and the court has jurisdiction of the subject-matter and of the parties thereto, and the court being advised in the premises, doth find that all the material allegations in the bill of complaint are proved, and that there is due the complainant, William Meinel, the sum of $1,033.95, also the sum of $70 as reasonable solicitor’s fee under the provisions of the instrument sued on.” The decree then orders, in the usual manner, that if some of the defendants do not pay the amount found due, etc., that the property he sold to pay the costs of suit, solicitor’s fee, etc.

A party in whose favor a decree granting affirmative relief is entered must, in order to sustain it on appeal, preserve the evidence by a certificate of the evidence, or the decree must contain a sufficient finding of facts proved. A general finding that all material allegations of the hill are proved and that the equities are with the complainant, is not sufficient to sustain a decree on appeal in the absence of a certificate of the evidence or a specific finding of facts. Gray’s Lake M. E. Church v. Metcalf, 245 Ill. 54; Ohman v. Ohman, 233 Ill. 632; Patterson v. Northern Trust Co., 230 Ill. 334. The record disclosing the absence of a certificate of the evidence or a specific finding of facts, it follows that the decree must be reversed.

Motion was made by the defendants in error to dismiss the writ of error because of the alleged fact that the property had been sold and one Rosa A. Randolph had caused redemption to be had. The decision of the motion was reserved to the hearing. The motion must be denied. Rosa A. Randolph is not a party to this litigation, but is said to be the grantee in a warranty deed given by plaintiff in error Emma Z. Randolph. If, as asserted, she effected a redemption of the property by payment, such payment would not operate as a release by Emma Z. Randolph of errors in the proceedings. The payment was compulsory. Schaeffer v. Ardery, 238 Ill. 557.

1 For the reasons stated the decree will be reversed and the cause remanded.

Reversed and remanded.