Lauterjung v. Chicago Title & Trustee Co.

Mr. Justice Smith

delivered the opinion of the court.

In the very elaborate brief and argument filed on behalf of appellants the fourteen errors assigned on the record are discussed under fifteen different heads or propositions. Manifestly we cannot discuss each proposition separately without extending this opinion beyond all reasonable bounds. We shall discuss only such of the propositions advanced as we deem necessary under the law and the evidence, and briefly state our conclusions upon the material points involved.

In our opinion the averments of the bill as amended are sufficient to give the court jurisdiction of the subject-matter involved. It has been held that when a stipulation in a mortgage or trust deed provides that the whole indebtedness secured may be declared due by the mortgagee or legal holder of the notes, upon default in payment of interest or taxes, the stipulation or provision is valid; and the filing of a bill to foreclose upon such default is an election to declare the whole indebtedness due, and no notice of such election or other evidence thereof is necessary, in the absence of any provision in the mortgage or trust deed requiring such notice. Brown v. McKay, 151 Ill. 315; Curran v. Houston, 201 id. 442; Holdroff v. Remlee, 105 Ill. App. 671. The facts alleged in the bill and shown by the evidence show, appellee’s right to declare the principal sum due.

The rule or rules of the Circuit Court requiring notice to be given of a motion for leave to amend a bill or other pleading not having been introduced in evidence, or incorporated in the certificate of evidence, this court cannot take notice of them and must presume that the rules of court were complied with and the proceedings regular. Grubb v. Crane, 4 Scam. 153; Bartling v. Thielman, 183 Ill. 88.

The preponderance of the evidence shows that appellee, after the maturity of the interest note falling due August 27, 1907, agreed to wait for payment thereof until October 1st following, at the request of appellant S. Rogers Touhy, and to leave the note at the office of E. R. Haase & Co. who had succeeded to the business of William C. Fricke, for payment until that date; and that appellee allowed the note to remain in the office of E. R. Haase & Co. until October 4, 1907, on which day, the note not having been paid, he took it from that office and finding that default had also been made in the payment of taxes levied upon the property, directed his solicitor to foreclose. Hpon these facts and under the provisions of the trust deed, appellee had a right to foreclose for the full amount of the principal no'te and interest thereon, and the tender made by appellants was insufficient, and although it was kept good by appellants, it did not amount to a satisfaction of the debt or preclude a declaration of forfeiture, or bar complainant’s right to foreclose, or relieve appellants from the costs. Fuller v. Brown, 167 Ill. 293; Sweetland v. Tuthill, 54 id. 215; Brand v. Kleinecke, 77 Ill. App. 269.

The decree provides that the defendants pay the amounts therein specified, being the amount due the complainant for the debt, with interest thereon from January 18, 1908, together with $400 solicitor’s fees, $89.25 stenographer’s fees, and $252.50 master’s fees, and that in default thereof the premises be sold, and that in case any deficiency is shown the complainant shall be entitled to execution against the defendants, S. Rogers Touhy and Grace C. Touhy, for the amount of the deficiency. The second assignment of error is: “The court below erred in further sustaining the fourth finding of the master in chancery, for the reason that no notice of the dishonor of the note offered in evidence was given to either the maker or endorser thereof.”

The fourth finding of the master is: “4th. I further find from the evidence that the interest note offered in evidence and marked ‘Complainant’s Exhibit C 1,1 and due August 27, 1907, being for the sum of $120, has not been paid; that the amount due on said interest note is $120, together with interest thereon to January 18, 1908, being for the sum of $3.26.”

Upon this assignment of error counsel for appellants argues that “in order to hold an endorser of a negotiable instrument personally liable, where the same is alleged to be endorsed by non-payment, notice of such alleged dishonor must be given said endorser except when such notice is waived either by him or by the instrument itself.” Counsel says in his brief that this legal proposition is based on the second assignment of error.

While we think the decree is erroneous in holding the appellant, S. Rogers Touhy, personally liable for the debt on the allegation of the bill and the proof, we do not think the question is properly raised on the assignment of error. The finding of the master is simply to the effect that the interest pote has not been paid and the amount due thereon. This does not involve the question of the personal liability of the endorser. ¡No objection or exception to the master’s report was made upon which to base the assignment of error, and the point is therefore waived. Dolese v. McDougall, 182 Ill. 486; Davis v. Upham & Stone, 191 id. 372; Whalen v. Stephens, 193 id. 121; St. Louis Natl. Stock Yards v. Himrod & Co., 88 id. 410; Shaffner v. Appleman, 170 id. 281; Cheltenham Imp. Co. v. Whitehead, 128 id. 279.

We think the allowance of $400 for solicitor’s fees is liberal, and while, as was said in Casler v. Byers, 129 Ill. 657, at page 670 of the opinion, “we might have been better satisfied with the decree if a smaller fee had been fixed therein, yet we cannot say that under the evidence the findings in that behalf were manifestly erroneous,” so as to justify a reversal on that ground.

Finding no reversible error in the record, the decree is affirmed.

Affirmed.