Garrett v. Peirce

Me. Justice Dibell delivered the opinion oe the Court. This case was before this court on demurrer to the bill of complaint in Peirce v. Garrett, 65 Ill. App. 632. Many of the questions of law now argued were settled for the case, so far as this court is concerned, by that decision. We there laid down rules to guide • the future conduct of the cause in the lower court, and it was bound to comply therewith. We are of opinion we ought not to treat the legal propositions there announced as open to further consideration in this court in the same case. Lizzie A. Garrett was not a grantee in the deed from Boyer. No fact is stated in the bill or shown in the evidence or found in the decree which tended to make her legally or equitably liable to defendants in error. The provisions in the decree finding her personally liable, and for a deficiency decree, and execution against her, are manifestly erroneous. The deed from Boyer to John S. Garrett contained this clause : “ Subject to an incumbrance of four thousand dollars, which the purchaser assumes and agrees to pay.” This is the only agreement by which Garrett assumed any personal liability. The prior mortgage to the Anthony Loan & Trust Company was for the principal sum of $2,000, and was then arid still is not paid and not due; and it is clear, from the evidence, this $2,000 was part of the $4,000 Garrett, by accepting the deed, assumed and agreed to pay. That would leave only $2,000 and interest from the date of the deed, which (by virtue of the language of the deed he accepted), John S. Garrett became personally liable to pay upon the bank mortgage. It was error to hold him personally liable for a larger sum. Defendants in error signed their own names as solicitors to the bill of complaint and to the amendment thereto, and the decree shows that they tried the case below. As they have neither paid solicitor’s fees nor incurred any liability to do so, the allowance of $100 solicitor’s fees to them should not have been made. It is against public policy that an attorney should be allowed fees for his own professional services in his own cause. Cheney v. Kicks, 168 Ill. 533. The contract between Garrett and Boyer was made in McLean county, distant from the records of Whiteside county. Boyer delivered Garrett an abstract of title, and Garrett had it examined; but it had not been brought down to date, and did not include the mortgage to the bank. Boyer stated to Garrett that the mortgage to the bank secured the sum of $2,000, arid Garrett accepted that statement as true; and it was the Anthony mortgage of $2,000, and the $2,000 for which Boyer told G-arrett the bank mortgage was given, which made the $4,000 of incumbrance which the deed stated the purchaser assumed and agreed to pay. The bank mortgage, in fact, states that it is to secure the whole of said note of $8,400, and it was of record when Garrett bought, and of course the land in G-arrett’s hands would be subject to be sold for all that might be due upon said bank mortgage, even if Boyer’s statement to G-arrett was untrue. But it is claimed by Garrett that when Boyer and wife executed the mortgage to the bank that part of the instrument descriptive of the debt to be secured thereby was blank, and that it was agreed between Boyer and the bank that it should be filled out so as to make it secure $2,000 only of the indebtedness evidenced by said note for $8,400. There is in the record positive evidence with corroborating circumstances to support this contention. Defendants in error claim that the mortgage was to be given by Boyer to secure the entire note, and that it was so drawn and completed before Boyer and wife executed and delivered it. There is -positive evidence in the record, with corroborating circumstances, to sustain this contention. If the claim of Garrett is true, undoubtedly he can have the benefit of it in this equitable proceeding. As the case must be reversed for the errors already pointed out, and as the parties do not seem to have exhausted the sources of evidence upon this subject, we think it proper to leave this question of fact undecided, that each party may offer further evidence upon the subject. It is assigned for error that the decree directs a sale subject to the Anthony mortgage. The Anthony Loan & Trust Company in its answer set up its prior mortgage, and asked therein that any sale ordered be made subject thereto. A junior mortgagee can not compel a foreclosure of a prior mortgage. It is the privilege of the holder of the prior incumbrance to foreclose it or not, as he sees fit. Shaffner v. Appleman, 170 Ill. 281. As that company was a defendant, and pleaded its mortgage, and did not ask a foreclosure, it was necessary the decree should establish the existence and amount of the prior mortgage, and direct a sale subject thereto. For the errors indicated the decree of the court below will be reversed and the cause remanded. Crabtree, P. J., took no part.