Stephenson v. Porter

Mr. Justice Dibell delivered the opinion of the court. Annie E. Stephenson filed a bill in equity against Francis G. Porter and others to foreclose a trust deed of real estate, securing a debt for the principal sum of $10,000 with interest. George L. Miller, a defendant, answered and filed a cross-bill to foreclose a second trust deed of said real estate, securing a debt for the principal sum of $3,000 with interest. He then moved for the appointment of a receiver of the rents and profits. The application was heard. William A. Bogan, who had become the owner of the equity of redemption and was a defendant to both bills, resisted the application. A receiver was appointed and a proper bond for the cross-complainant and proper bond of the receiver were each approved and filed. Bogan preserved the evidence by a certificate and appeals from the order appointing the receiver. The affidavit to the cross-bill states that the contents thereof are true, “except as to those matters therein stated to be on information and belief, and that as to those matters he verily believes the same to be true.” Appellant contends that this affidavit puts all the allegations of the cross-bill upon information and belief. The cases which he relies upon were where the words “to be” in the first part of the above quotation were absent. The one form refers the court to the language of the bill itself to ascertain what is therein stated to be on information and belief. The other form requires a search into the mind of the pleader or of the affiant to learn what lie intended to state on information and belief. Of many cases holding the first form positive and sufficient and the second form uncertain and insufficient, we refer to Stirlen v. Neustadt, 50 Ill. App. 378; Christian Hospital v. People, 125 Ill. App. 631; and Von der Leck v. Baldwin County Colonization Co., 178 Ill. App. 93. We regard it as settled that this affidavit is an absolute verification of all the allegations of the cross-bill, except where the cross-bill states expressly that the allegation is on information and belief. Cross-complainant offered no evidence in support of his application for a receiver. It must therefore be supported, if at all, only by those allegations of fact in his bill which are not therein stated to be on information and belief. The existence of these two incumbrances for a total of $13,000 and interest is so established. The first instrument was dated May 1, 1913, and this application for a receiver was heard on May 9,1914, so that the interest is not a large amount. There are allegations in the cross-bill of various notices for mechanic’s liens for various amounts, but these are all alleged on information and belief and must be disregarded. Appellant proved against the application, by several witnesses, that the property was then worth more than $20,000 and that it was at that very time under an offer to buy the same, and furniture in the dwelling house valued at $1,000 for over $19,000, and that the proposed purchaser had deposited $6,000 with the Chicago Title & Trust Company' upon his offer to purchase the same. It is clear that the second trust deed pledged the rents and profits for this debt. The principles governing such a case are sufficiently laid down in First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140; Bagley v. Illinois Trust & Savings Bank, 199 Ill. 76; and Ball v. Marske, 202 Ill. 31. The Bagley case, supra, however, shows that though- the fact that the trust deed gives a lien upon the rents and profits is to be considered in determining whether the power of the court to appoint a receiver should be exercised, yet the court is not bound to enforce it where it is not necessary for the security of the debt. We conclude that in this case, where the property is not only proven by several witnesses to be worth over $20,000 but ah existing offer is shown to pay therefor (with furniture) over $19,000 with a substantial sum deposited to secure its performance, and the liens proven to exist are only $13,000 and about one year’s interest, the court should not have appointed a receiver, and that it was not necessary to do so in order to make the cross-complainant entirely secure. The order appointing the receiver is therefore reversed. Reversed.