Barnett v. Davenport

Sample, J. The only error assigned is the allowance of an attorney’s fee in the decree of foreclosure. The mortgage provided in effect that if suit was commenced to foreclose the mortgage, then ten per cent of the amount found to be due should be included in the same decree, for attorney’s fees. The appellants insist that the attorney’s fee did not become due until after the suit was actually begun, and therefore could not be included in the decree; and the case of Nickerson et al. v. Babcock, 22 Ill. 497, is cited in support of this view. It will be observed that the agreement in the mortgage expressly provides that the attorney’s fee should be included in the same decree. There was no such provision in the note in the Hickerson case. In the case of McIntire v. Yates et al., 104 Ill. 503, the court uses this langnage : “The mortgage in this case contained a provision that in case of foreclosure two per cent of the amount found due on the mortgage indebtedness should be allowed in the decree, as a solicitor’s fee. The court allowed this amount in the decree of foreclosure and it is said the decree in this regard is erroneous. This case can not be distinguished from Clawson v. Munson, 55 Ill. 395, where a similar question arose, and the court held that a decree for an attorney’s fee under a mortgage like the one under consideration was proper. See, also, Haldeman v. M. M. L. Ins. Co., 120 Ill. 390. The attorney’s fee was properly included and the decree will be affirmed. Decree affirmed.