Sampson v. Neely

Mr. Presiding Justice Waterman delivered the opinion of the court. The principal contention of appellants is that the note and trust deed for $20,000, given by Carrie Spencer to the, First National Bank, was" collateral to her indebtedness to the bank for which it already held her notes; that Carrie A. Spencer by giving the note which the trust deed for $20,000 was made to secure, incurred no new indebtedness and such note was without consideration; therefore the trust deed purporting to be to secure said $20,000 note was made to secure a note which had no consideration; and therefore the trust deed is of no effect as against subsequent judgment creditors of Carrie Spencer. Appellants insist that the Supreme Court of this State in the case of Walker v. Carleton, 97 Ill. 582, distinctly held in accordance with the claim now made by appellants. We do. not regard the ease cited as sustaining appellants’ contention. In that case it appeared that Carleton did agree to loan to Walker $5,000, the loan to be secured by Walker’s note and a trust deed upon certain real property. Walker made his note for $5,000, and a trust deed securing the same in accordance with the agreement. Thereafter Carleton advanced to Walker on account of the loan $3,000, taking at the time Walker’s note for $3,060, due in thirty days. After this had been done, Carleton refused to carry out the agreement for a loan of $5,000; and after the note for $5,000 became, by its terms, due, the trustee named in the trust deed, under a publication notice by him given, sold the property conveyed by the trust deed, for the purpose of satisfying the note for $3,060. Carleton, at the sale, purchased the property conveyed by the trust deed, and a deed of the same was, under the sale, made by the trustee to Carleton. Thereafter Walker filed his bill to redeem from such sale, offering to pay the money actually obtained by him, together with interest thereon. The Supreme Court held that he was entitled to so redeem. In that case it appeared that Carleton had endeavored to enforce and caused sale to be made under the terms of a trust deed made under an agreement which he, Carleton, had failed to carry out. The sale was not made in pursuance of any decree of court nor had the equitable or legal rights of the parties been passed upon by any court prior to the trustee’s sale. It is quite true, as is said in that case, that if a person owing the sum of $5,000, has given his note therefor, the giving of a new note for the same sum does not add to his indebtedness. It was not claimed in the present case by appellees that the giving of the note dated January 27,1898, by Carrie A. Spencer for $20,000 added to her indebtedness. Nor that her indebtedness was by the execution of notes, October 1, 1896, increased or added to. Nevertheless "it was entirely legitimate and equitable for her to make a note to the bank representing indebtedness then actually existing from her to the bank and to secure the same by a trust deed of her property. Such trust deed' became a valid lien and claim upon her property for the actual indebtedness it represented. The fact that the indebtedness represented by a note to secure which a trust deed is given, was at the time of the making of such note represented by other notes of the note maker, is no reason for refusing to enter a decree of foreclosure upon the actual indebtedness represented by a note for which the trust deed was given as security. Stanley v. The Chicago Trust & Savings Bank, 165 Ill. 295. We do not think the court erred in not requiring Mr. Blair to pay interest upon the money deposited with him as security for his liability under the appeal bond he had signed. The moneys were so deposited with him under the agreement made between him and Carrie Spencer by which he became surety for her. The' money so received from him was deposited from time to time and he, at no period, had any assurance that he might not be called upon by a termination of the litigation, either by settlement or judgment, to pay over the monqy in his hands at any day. Under the circumstances there was no warrant for charging him with interest on the money he so held. Estate of Schofield, 99 Ill. 513; Perry on Trusts, Sec. 468. Appellants urge that it was error to allow the Merchants’ National Bank $1,500 on account "of solicitor’s fees. The evidence in the case was that from $1,500 to $2,000 was a reasonable fee for the work necessarily performed by solicitors in this-case. There was no testimony to the contran, and so far as appears from the record, no objection was made in the court below to the allowance of such fee. The allowance of such fee seems to have been first objected to by the eighth assignment óf error made in this court. We regard the objection as coming too late. Wheatley v. Savings Bank, 167 Ill. 480; Shaffner v. Appleman, 170 Ill. 281; C. & A. R. Co. v. Clausen, 173 Ill. 107; Dorn v. Farr, 179 Ill. 110; Dorn v. Bissell, 180 Ill. 73. Finding no error requiring a reversal of the decree of the Circuit Court it is affirmed.