Uedelhofen v. Mason

Mr. Justice Carter delivered the opinion of the court: It was clearly proved on the hearing in the superior court that the defendants to the bill failed to perform their covenants to keep the buildings on the mortgaged property insured to the amount agreed upon, and to pay the abstract fees. The §150 allowed by the first decree for solicitor’s fees was stipulated for in the deed of trust, and we find nothing in the record tending to prove that this charge was excessive or in any way unfair. It seems clear, then, that if the complainants were entitled to foreclose, they were entitled to a decree for solicitor’s fees also, and for costs,—the two items that the defendants asked to have stricken from the decree as first entered. By tendering, on the hearing of the motion, all of the complainants’ demands except the solicitor’s fees and costs, the defendants admitted that the amount tendered was due the complainants,—indeed, admitted every fact which the complainants would have been required to prove to obtain a decree for that amount. (Sweetland v. Tuthill, 54 Ill. 215; Monroe v. Chaldeck, 78 id. 429; 25 Am. & Eng. Ency. of Law, 942; 1 Greenleaf on Evidence,— 15th ed.—205; 21 Ency. of Pl. & Pr. 582.) It follows that it was error to set aside the decree of the February term, and to dismiss the bill for want of equity after such tender and the refusal of complainants to accept the same. It may be that the finding in the first decree that Mason was the legal holder of the note was not sustained ■by the evidence, but both he and Schmidt were parties complainant, and Schmidt, as well as Mason, would be bound by the decree, and the admission of the defendants that the amount tendered was due to the "complainants, or that all they demanded was due except costs and solicitor’s fees, was a waiver of any variance in the respect mentioned. If the complainants were entitled to the amount tendered, they were also entitled to costs and the solicitor’s fees. The chancellor erred in not so finding, and the Appellate Court was correct in reversing the decree. The judgment of the Appellate Court must be affirmed. Judgment affirmed.