Ball v. Marske

Mr. Justice Carter

delivered the opinion of the court:

Counsel for plaintiffs in error insists that the decree is erroneous because the amount for which the note and trust deed were given was not paid to the makers of the notes or to any one for them. The testimony on this point has been very meagerly- abstracted, but on looking into the record we find that Charles P. Eichl, one of the defendants in error, testified that he paid out between 8600 and $800 on bills for material for Murdoch, — that is, on itemized statements, handed him by Murdoch, of the bills outstanding for materials and labor for alterations and improvements of. the house on the premises. He produced an itemized statement showing that he had paid out for Murdoch §1497.45, including the amount due on the lot. This statement had been shown to Murdoch after all the money had been paid out. Counsel admits the payment of the money, but insists that because Murdoch did not get it in his own hands it was not paid to him and amounts to a partial failure of consideration. It was paid out for him in accordance with the agreement with him, and that was sufficient. The court found that Marske had paid the full amount of §1500.

Counsel insists, also, that the appointment of the receiver was error. The bill alleged that the trust deed provided that in default of payment it should be lawful for the trustee to enter into and take possession of the premises, and should collect and receive all rents, issues and profits thereof. It also alleged that the real estate was scant security, and prayed for the appointment of a receiver to take possession and collect the rents and apply them to the payment of the indebtedness. The master reported a deficiency, and a decree for the deficiency was entered. This was proper. (Kirby v. Runals, 140 Ill. 289.) The trust deed pledged the rents, issues and profits as security for the payment of the amount due. The appointment of a receiver was therefore proper without regard to the solvency of the mortgagor, and such appointment was lawfully made, though by a decree subsequent to the original decree. First Nat. Bank v. Illinois Steel Co. 174 Ill. 140; Bagley v. Illinois Trust and Savings Bank, 199 id. 76.

The decree was properly affirmed by the Appellate Court, and finding no error in the judgment it will be affirmed.

Judgment affirmed.