Howard v. Burns , 201 Ill. App. 579 ( 1916 )

Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision. 1. Mortgages, § 503^*—when evidence sufficient to support decree of foreclosure. On a bill to foreclose a trust deed, a finding of the master that complainants were entitled to relief and a decree of the chancellor granting such relief, held supported by the evidence. 2. Mortgages, § 514*—when decree of foreclosure should include appointment of receiver. Where a trust deed mortgages the rents, issues and profits of the mortgaged premises as security for the debt, it is the duty of the chancellor, on a bill for foreclosure, to appoint a receiver to collect such rents, etc., since they become, under such circumstances, as much a part of the security as the land and its improvements. 3. Mortgages, § 738*—how equity of redemption affected by appointment of receiver. Where a trust deed mortgages the rents, issues and profits of the mortgaged premises during the period of redemption as security for the mortgage debt, the rights of the owner of the equity of redemption are subject to all the provisions of the trust deed, including the conveyance of the rents, etc., so that the appointment of a receiver operates to deprive such owner of the possession of the premises and the right to collect income, as well as to exercise other acts of ownership, until the mortgage debt is extinguished or the property redeemed. 4. Mortgages, § 198*—when purchaser of equity cannot enforce personal liability of mortgagor. Where property is conveyed subject to a mortgage, the personal liability of the mortgagor on the mortgage notes cannot be enforced by purchasers subsequent to the mortgage. 5. Mortgages, § 163*—when mortgagor purchasing notes is subrogated to holder. A mortgagor, not the owner of the equity of redemption, who, by virtue of his primary liability as maker of the mortgage notes, pays one of them to the holder thereof, has, as to subsequent purchasers and lien holders, a right to look to the property for reimbursement, and is subrogated to all the rights of the holder of the notes paid. 6. Mortgages, § 133*—when purchase of note does not destroy lien. On a bill to foreclose a trust deed securing several notes maturing at different times, one of which was overdue, where it appeared that the maker of the notes arranged with one not a party to the transaction to advance part of the money necessary to pay the overdue note, an agreement between the maker and such person that such person should share in the security and be reimbursed either by money realized from a sale of the mortgaged premises or by acquiring the property at the sale, held not illegal or subject to attack by third persons whose interests were not infringed by the transaction. 7. Mortgages, § 241^*—when trustee’s agreement to keep alive paid note not illegal. On a bill to foreclose a trust deed securing several notes, maturing at different times, one of which is overdue, where it appeared that the maker of the notes paid the amount due on the overdue note to the trustee, an agreement between the maker and the trustee that the paid note should not be marked paid, but retained and kept alive for the benefit of the maker, subject to the rights of the holder of the unpaid notes, held not illegal. 8. Mortgages, § 187*—when mortgagor subrogated to rights of creditor. Where a mortgagor sells the mortgaged parcel subject to the mortgage, the land in equity becomes a primary fund for the payment of the debt, and the vendor occupies the position of surety, and on payment of the mortgage debt is subrogated to the rights of the creditor. 9. Mortgages, § 660*—when solicitors’ fees apportionable. Although it is unusual to apportion solicitors’ fees in an equity proceeding, yet where the parties to whom the fees are allowed are represented by different solicitors, as, for example, where such fees are allowed to the complainant in the original bill and to the complainant in a cross-bill, a separate allowance to each is warranted. 10. Appeal and error, § 384*—when lack of necessity of cross-bill cannot be urged. The fact that the filing of a cross-bill is unnecessary cannot be availed of on appeal where it was not objected to before the chancellor. 11. Costs, § 52*—when solicitors’' fees are properly costs. Solicitors’ fees allowed in a chancery proceeding are properly costs in the cause.