Brown v. Miner, Frost & Hubbard

Mr. Justice Shops

delivered the opinion of the Court:

It is well settled that one party can not assign error for another who makes no complaint. The two mortgagors were properly served in the suit to foreclose the mortgage, and appeared therein. James M. Brown, it appears, was a tenant of the premises, only, whose term had substantially expired. If it was conceded that the service upon him was insufficient ■to give the court jurisdiction of his person, and that it was therefore error to enter a decree pro confesso as to him, he alone ■could avail of that error. If he had a joint interest with the plaintiffs in error, the rule would be different, for in such case .a defendant has the right to insist upon a decree which settles the rights of all the parties concerned. (See Enos v. Capps, 12 Ill. 257.) It is therefore not necessary to determine whether ■there was proper service on James M. Brown or not. He is -content with the decree rendered, and any error as to him will in no manner injuriously affect plaintiffs in error here. Clark v. Marfield, 77 Ill. 262; Hannas v. Hannas, 110 id. 53; Havighorst v. Lindberg, 67 id. 468; Kennedy v. Kennedy, 66 id. 196; Smith v. Hickman, 68 id. 314; Richards v. Greene, 78 id. 527.

Nor do we think there was error in the failure of the court to send an issue as to the mental capacity of James Brown, -one of the mortgagors, to he tried by a jury. It does not appear that the court was requested to direct the issue to be thus tried. The English chancery practice made the reference of ¡an issue of fact to a jury imperative only in cases of an heir-at-law, a rector or a vicar. (Daniell’s Ch. Pr. 1075.) The statutes of this State require the submission to a jury of an issue arising upon the contest of a will on the ground of insanity of the testator, or of his want of mental capacity. The statute seems to be imperative in this respect. Rev. Stat. chap. 148, see. 7; Meeker v. Meeker, 75 Ill. 260; Long v. Long, 107 id. 211.

In Myatt et al. v. Walker et al. 44 Ill. 485, this court said: “We have carefully examined the testimony in the record. We find it voluminous, doubtful in some respects, and largely conflicting. When, however, taken altogether, we think it fails to sustain the decree. In. the absence of all knowledge of the manner of the witnesses in giving their testimony, we feel some doubt as to where the true weight of evidence really lies. In' such cases it is eminently proper that an issue should be framed, and tried by a jury. Such a practice has always been fully sanctioned, and we think it more satisfactory, and better cal- ‘ culated to promote justice, and the practice should be adopted by the court below in all cases involving questions of insanity.” • In Hahn v. Huber et al. 83 Ill. 244, this court held, that on a bill to foreclose a mortgage, a motion to submit the question' of the insanity of a mortgagor to a jury, without any affidavit of the fact of his insanity, was properly overruled.

It would seem from the two cases cited, where the question of insanity of the defendant is properly presented by the pleadings and by affidavit, that the better practice is to submit the question of sanity to a jury. It by no means follows, however, that the court is bound, upon its own motion, to submit such an issue, or that it is error not to make such submission. The statute (sec. 40, chap. 22,) provides, that “the court may, in its discretion, direct an issue or issues to be tried by a jury, whenever it shall be judged necessary, in any cause in equity pending therein.” The implication necessarily is, that the submission of the question of fact .to a jury, in chancery causes, where not otherwise provided, is left to the sound discretion ’ of the chancellor. In all cases where, by the course of the chancery practice or by the statute, the issue is required to be submitted to a jury as a matter of course, no such discretion exists. It is, however, evident, that plaintiffs in error are in no condition to complain of any ruling of the trial court in this respect. That court was not called upon to make a ruling, nor was the question presented for its consideration. To have raised the question they should have made the motion for the submission of the issue in apt time in the trial court. But, as we have said, the duty of the court to submit an issue to be tried by a jury, was, in the case under consideration, discretionary, not imperative. See Milk et al. v. Moore, 39 Ill. 584; Dowden et al. v. Wilson, 71 id. 485; Fanning et al. v. Russell et al. 94 id. 386.

It is next claimed, that the cause was referred to the master to take and report the evidence, and that a decree was entered without any report having been made by the master. The decree, as set forth in the transcript, recites that the cause was heard on the bill, answers, replication, and “also the proof taken and reported by the master in chancery of this court, and testimony heard in open court.” This recital in the decree can not be contradicted or overcome by the clerk’s certificate that there is no report of the master on the files. The decree recites that James Brown was of sound mind when he executed the note and mortgage, and finds that fact, together with other facts on which it is based. The facts thus found in the decree justify its rendition. In the absence of a bill of exceptions or certificate of evidence, it will be presumed that the findings were warranted by the proofs heard by the court. In the absence of a certificate preserving all the evidence heard by the trial court, it must be presumed that there was sufficient evidence to warrant and sustain the finding. Hannas v. Hannas, supra; Groenendyke v. Coffeen, 109 Ill. 334; Sheen v. Hogan, 86 id. 16; Davis v. American and Foreign Christian Union, 100 id. 313; Morgan v. Corlies, 81 id. 72; McIntosh v. Saunders, 68 id. 128; Rhoades v. Rhoades, 88 id. 139; Walkers v. Cary, 53 id. 470; Allen v. Le Moyne, 102 id. 25; Mauck v. Mauck, 54 id. 281; Walker v. Abt, 83 id. 226; Corbus v. Teed, 69 id. 205.

It is urged that the court erred in allowing, by its decree, the taxes advanced by complainants, because, as it is said, no foundation was laid therefor in the allegations or prayer of the bill. It is unquestionably true that the decree must be in conformity with and supported by the allegations and prayer of the bill. It is shown that when the bill was filed, complainants had not paid the taxes, although it was averred that the taxes were past due and unpaid by the defendants, and that was made, as it is alleged, one of the grounds for electing to declare the whole sum evidenced by the note to be due. Complainants not having then paid the taxes, it would follow, that there would be no prayer for their recovery by them. However, the bill sets out the mortgage as a part thereof, and alleges, that under its provisions the taxes were to be paid by the defendants, and their default in that regard. This we think was sufficient, under the general prayer for relief, to authorize the entry of a decree for the taxes paid by .the mortgagees pendente lite, to protect the title to the property mortgaged.

Where a mortgage provides, that in case of foreclosure and sale of the mortgaged premises the mortgagees shall be paid out of the proceeds of the sale the expense of advertising, etc., together with moneys advanced for taxes, assessments, and other liens, etc., and the mortgagee pays such taxes subsequently to the filing of his bill to foreclose, in which the duty of the mortgagor to pay the taxes, and his failure to do so, are alleged, the complainant may be allowed, by decree, the amount of such advances, under the general prayer for relief, and without filing a supplemental bill.

Finding no substantial error of which the plaintiffs in error can complain, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.