Romberg v. McCormick

Mb. Justice Windes delivered the opinion of the court. It is claimed, first, that the bill was prematurely filed, but we think this contention is not tenable. It appears from the evidence, though not in the decree, nor in the master’s report proper, that Harold F. McCormick had filed a bill to foreclose the same trust deed here sought to be foreclosed, but for the failure to pay an interest note, Ho. 2, referred to in the statement preceding this opinion, becoming due February 19, 1898, and secured a decree of sale thereunder. That decree directed a sale of the premises subject to the continuing lien of the trust deed to secure the principal note and all interest accruing thereon after February 19, 1898, and thus made the claim of appellee herein, under the "interest note, Ho. 3, a first mortgage as compared with the lien claim of said Harold F. McCormick. We deem it unnecessary to cite authority to sustain the proposition that a junior mortgagee, by the foreclosure of his mortgage, may not thereby deprive a first mortgagee of his right to foreclose thereafter. The case of Hill v. Blackwelder, 113 Ill. 285, relied upon by appellant in this regard, is not applicable. Hext it is urged for appellant that the bill was prematurely filed because the trust deed does not authorize a foreclosure for non-payment of interest. A like contention was held by this court to be untenable in the case of Silverman v. McCormick, 90 Ill. App. 120, involving the same trust deed here in question. This case was affirmed by the Supreme Court in the case of Silverman v. Silverman, 189 Ill. 394. It is also claimed that the court erred in not making a specific finding of appellant’s lien as found by the master, but this can not be maintained. The decree confirms the master’s report in all respects, which necessarily includes a finding of appellant’s lien as found by the master; and by the terms of the decree, in case there should be a surplus on the sale, the master is directed to hold it subject to the further order of the court. This is a full protection to the rights of appellant in that regard. It is further said that, although this bill was filed in the name of appellee, it was virtually brought for the benefit of the McCormick Harvesting Machine Co., and therefore the proceeding should fail. There is no evidence in the record to sustain the claim. It appears that before the bill was filed, and on March 29, 1899, appellee purchased and paid cash for the interest note No. 3, and it was handed to him by the representative of. the McCormick Co. Counsel for appellee claim that damages should be assessed against appellant for the prosecution of this appeal merely for delay. We can not yield our assent to the claim. It is true the principal question in this case had .been decided by this court against appellant’s contention in the case of Silverman v. McCormick, supra, but an appeal in that ease was pending in the Supreme Court at the time this appeal was taken and perfected, and he had a right to have the question adjudicated by the Supreme Court without incurring the liability to a penalty by way of damages for taking this appeal. The decision of the Supreme Court on the question was not finally made until long after this cause was submitted, and we, therefore, are of opinion that, under the circumstances shown by this record, the case does not come within the spirit nor intendment of the statute invoked. The decree of the Superior Court is affirmed.