Atwood v. Whittemore

Mr. Justice Sears delivered the opinion of the court. It is urged by counsel for defendant in error that this writ of error will not lie to review the decree in question, because a former writ of error ivas prosecuted in this court to review a part of the proceedings in the same cause. Without reference to the lack of a plea of res adjudicate/, to this writ of error and treating the question as if properly presented by plea or appropriate motion, it is apparent that the contention is not tenable. The defendant in error here was not a party to the writ of error first sued out. It was prosecuted to review only an order of the court disposing of certain funds collected by a receiver appointed in the suit, and upon that writ of error as between the parties thereto, viz., plaintiff in error and. the receiver, the question now presented could not have been raised or determined. We have, then, only to inquire as to the propriety of that part of the final decree which is now attacked, viz., the allowance of $50(Tas solicitor’s fees. The order can not be justified under the general provision of the trust deed for payment by the grantor, plaintiff in error, of all costs and attorney’s'fees incurred or paid by the grantee, defendant in error, in any suit in which he has been plaintiff or defendant by reason of being a party to the trust deed or holder of the note, for it is apparent that this provision has relevancy only to suits other than a suit to foreclose the mortgage, the solicitor’s fees in the latter, i. e., the foreclosure suit, being specifically provided for elsewhere in the trust deed. There is no evidence to show that defendant in error has paid or incurred any liability for attorney’s fees in any suit other than in this foreclosure suit. And, disregarding the evidence, the question is settled by the lack of any allegation in the bill of complaint that defendant in error has paid or incurred any sum whatever for such attorney’s fees. If the decree be treated as resting upon this provision of the trust deed, it would lack support in any allegation of the bill of complaint. Therefore we must regard the decree allowing solicitor’s fees as based upon the provision of the trust deed that solicitor’s fees for the foreclosure proceeding be paid out of the proceeds of a sale in case of foreclosure. But this provision is limited to the sum of $100. In the absence of statutory provision, the entire matter of decreeing an allowance of any sum as attorney’s or solicitor’s fees in the foreclosure proceeding, to be paid out of the proceeds of foreclosure sale, rests solely upon contract. In the absence of any contract for such allowance, it could not be made. 2 Jones on Mortgages (2d Ed.), 1606; Constant v. Matteson, 22 Ill. 546; Eimer v. Eimer, 47 Ill. 373; Cornwell v. McGowan, 53 Ill. 363; Hutchinson v. Hutchinson, 152 Ill. 347; Stover v. Johnnycake, 9 Han. 367. Here there is in the contract of the parties, as expressed in the trust deed, a provision that solicitor’s fees in a proceeding to foreclose the trust deed may be allowed and ordered paid out of the proceeds of a sale, to the extent of one hundred dollars. There is no provision for an allowance of any greater sum. Therefore the decree can not be sustained in so far as it allows the sum of $500 as solicitor’s fees and orders the same to be paid out of the proceeds of the foreclosure sale. The fact that plaintiff in error did not appear before the master and object to the report, does not operate to preclude him from now insisting that the decree is not supported by the allegations of the bill of complaint. Gault v. Hoagland, 25 Ill. 266; Martin v. Hargardine, 46 Ill. 322; Hannas v. Hannas, 110 Ill. 53. The decree is reversed in so far as it orders the payment of $500 as solicitor’s fees, and the cause is remanded. Reversed in part and remanded.