Stone v. Tyler

Mr. Presiding Justice Gary delivered the opinion of the Court. September 22, 1892, the appellees filed against the appellant a petition for a mechanic’s lien, and the suit being still pending, December 12, 1895, they filed a petition for the appointment of a receiver over the premises upon which the lien was claimed. The court appointed the receiver, and this appeal is from the order making such appointment. The appellees cite Sec. 12 of the “ Act to Eevise the Law in Eelation to Mechanic’s Liens,” approved June 25, 1895, as authority that the court may appoint a receiver in a mechanic’s lien suit, and appellant, in terms, declines to discuss the question whether that act applies to this suit; so that what is now decided is not to be regarded as expressive of any opinion upon that question. The record very clearly shows that there is very little probability—it may well be stated more strongly—that the appellees will ever obtain any part of the money due to them, which originally was $2,672.73 undisputed, besides $174.17 disputed, and which the report of the master—not excepted to—fixes at $3,330,49 due November 30, 1895, unless through a receiver of the rents of the premises while the time of redemption from a sale under a mortgage is running. That mortgage, by consent of both the parties here, had precedence of the lien of the appellees. The sale was December 4, 1895, for $90,776.27 to the mortgagee, which sum was only enough to pay the mortgage decree, costs and expenses. The cases, Gatz v. Casey, 15 Ill. 189, Ellet v. Tyler, 41 Ill. 449, and Elgin Lumber Co. v. Langman, 23 Ill. App. 250, are authority that a mechanic’s lien may attach to the proceeds of property to which the lien had attached, after the property itself is no longer accessible. Whether it has become inaccessible by the fault or misfortune of the party by contract with whom the lien accrued, and who controls the proceeds, can make no difference in the equity of the holder of the lien. The rents of the premises during the time of redemption belong to the appellant. Under contract with him the lien accrued. The rents proceed from the premises to which the lien attached. Why should they not be applied to discharge the lien? That is a question not to be answered on this appeal from an interlocutory order, but will remain to be decided when the final decree is entered, without any inference from this opinion. It is objected by the appellant that the appellees have delayed in the prosecution of their suit, and that such delay should prevent their relief through a receiver. On the record that is here, it is impossible to tell who is at fault for the delay, but it is certain that the appellees are not to be blamed that the appellant has not paid them. This opinion is not to be taken as holding that we have enough record here, to reverse any order upon. Pease v. Francis, 63 Ill. App. 338. The order is affirmed.