author: Mr. Presiding Justice Dove

text:
    Earl Francis, Appellant, v. Frederick E. Legris, Sr. et al., Appellees.
    Gen. No. 9,390.

      Heard in this court at the October term, 1938.
    Opinion filed October 24, 1938.
    W. H. Dyer, of Kankakee, for appellant; Eben B. Gower, of Kankakee, of counsel.
    Werner W. Schroeder, of Chicago, and Len H. Small, of Kankakee, for appellee Minnie B. Hutchin.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On April 30, 1932, a judgment by confession was rendered by the circuit court of Kankakee county in favor of Mary B. Enos and against Frederick E. Legris and H. C. Leuhers and Sons Corporation for $7,299.05 upon a note for the principal sum of $5,000, dated May 2, 1923, payable to Eugene Enos and executed by said corporation, and by said Frederick E. Legris. Upon this judgment an execution was issued, which was duly returned not satisfied. On August 2, 1934, in a proceeding theretofore brought in the circuit court of Kankakee county by certain creditors of the American Trust and Savings Bank of Kankakee, then in the process of liquidation, against the stockholders of that bank, a judgment was rendered against the said Frederick E. Legris for $48,528, upon which an execution issued on October 18, 1934, which execution was, on December 18, 1934, returned not satisfied. On May 11, 1937 and October 27, 1937 other executions were issued and not being satisfied the plaintiff, being successor receiver by appointment of the circuit court of Kankakee county in said stockholders’ suit, filed, by leave of court, on November 22, 1937, the instant complaint, which alleged that the note upon which the circuit court rendered judgment on April 30, 1932 in favor of Mary E. Enos was not indorsed by the payee Eugene Enos but that Elfa M. Hutchin, at the time said judgment was rendered, represented to the court that she was the agent of said Mary E. Enos, the plaintiff therein, and further represented that said Mary E. Enos was the owner thereof and that the makers of said note were indebted to her for money loaned by. her to them. The complaint averred that the note did not then and never had belonged to said Mary E. Enos, that said representation that it did was false and known by Elfa M. Hutchin to be false when made, that Elfa M. Hutchin died on July 30, 1933 and on October 10, 1934 Minnie B. Hutchin, knowing that Mary E. Enos was not the owner of the note of May 2, 1923, fraudulently procured said Mary E. Enos to assign said judgment of April 30, 1932 to her the said Minnie B. Hutchin. The complaint then described certain residence property in the village of Bourbonnais and certain farm land, all in Kankakee county, which it was alleged were owned by said Frederick E. Legris and prayed that the judgment of April 30,1932 be declared null and void and by decree removed out of the way of plaintiff’s execution.

Minnie B. Hutchin answered this complaint, in which she averred that Mary E. Enos was the legal holder of said note at the time judgment was taken and that Elfa M. Hutchin had furnished the consideration for said note and that she, the said Elfa M. Hutchin, was therefore the equitable owner thereof. By her answer she denied that Elfa M. Hutchin had made any false or fraudulent representations at the time the judgment was rendered and denied that she, the said Minnie B. Hutchin, had fraudulently procured an assignment of said judgment from Mary E. Enos. By her answer she insisted that the plaintiff was guilty of laches because he and his predecessors, after the judgment was procured against Legris on August 2, 1934, took no steps to assail the judgment of April 30, 1932 until this complaint was filed on November 22,1937, two and one-fourth years thereafter, and averred that during this period of time Elfa M. Hutchin and Mary E. Enos had died, thereby depriving this defendant of their testimony. The answer denies that the judgment was obtained by fraud upon the court and avers that the makers of said note of May 2, 1923, upon which judgment was rendered on April 30, 1932, have at all times recognized the validity of said judgment and have never at any time questioned said judgment or sought to set it aside and insists that she is the owner of said judgment and that it is a first and prior lien upon the property of Legris which is described in the complaint, subject only to prior mortgage incumbrances thereon. After the issues were made up the cause was heard by the chancellor, resulting in a decree dismissing the complaint for want of equity and the plaintiff appeals.

The evidence discloses that the American Trust and Savings Bank of Kankakee closed on December 27, 1929 and on April 30,1930 a suit was instituted by certain creditors of that bank to enforce the liability of its stockholders and on August 2,1934 a judgment was obtained against Frederick E. Legris for $48,528, upon which an execution issued on October 18, 1934, which was returned unsatisfied. On May 11, 1937 and October 27,1937, other executions were issued and the later one was in the hands of the sheriff at the time the complaint herein was filed. Prior to February 20, 1929, the name of the American Trust and Savings Bank had been the Legris Trust and Savings Bank (Heine v. Degen, 362 Ill. 357), and Eugene Enos'was employed there for many years and accumulated considerable property. On November 4, 1928, a conservator was appointed for Eugene Enos and a year later he died at the age of 68, leaving an estate of approximately $200,000. Mary E. Enos was his aunt by marriage and he had for many years made his home with her and to an extent he looked after some of her business and financial transactions. Elfa M. Hutchin also lived in the home of Mary E. Enos, took care of her and was her companion and intimate friend up until the time of the death of Elfa, which occurred in 1933. Minnie B. Hutchin, appellee herein, is the sister of Elfa M. Hutchin and her sole devisee and legatee. Prior to the death of Elfa, Minnie lived in California, but upon her sister’s death, she, Minnie, came to Kankakee and lived in the home with Mrs. Enos, administered her sister’s estate and remained with Mrs. Enos in her home until the death of Mrs. Enos, which occurred on June 2, 1935, at which time Mrs. Enos was almost 90 years of age.

G-eorge E. Leuhrs testified that on May 2, 1923 he had a transaction with Eugene Enos and in return for the note signed by the Leuhrs Corporation and Frederick E. Legris (being the note upon which judgment was taken on April 30, 1932 and which judgment it is sought, in this proceeding, to remove out of the way of appellant’s execution), he received from Eugene Enos a check for $5,000 payable to the order of F. E. Legris, bearing the signature of Mary E. Enos, that this check was indorsed by the payee F. E. Legris and delivered by him to Leuhrs, and by virtue of said check and indorsement he, Leuhrs, received the $5,000 called for by the check, that Mary E. Enos had an, account in the Legris Trust and Savings Bank upon which the check was drawn and the check was paid by the bank the day of its date and charged to the account of Mary E. Enos. This check was produced upon the hearing of this case and was introduced and admitted in evidence.

Amos H. Robillard testified that he is a lawyer and has been practicing his profession in Kankakee since .1906, that he knew Elfa M. Hutchin, Mary E. Enos and Eugene Enos, that Elfa M. Hutchin first brought the $5,000 Legris note of May 2, 1923 to his office and consulted with him about its collection, that thereafter he prepared the narr, cognovit and affidavit of Elfa M. Hutchin which resulted in the judgment of April 30, 1932 and did so only after consulting with Mary E. Enos and Elfa M. Hutchin, both of whom came to his office and from whom he ascertained the facts concerning said note. The narr and cognovit are in the usual form. The narr alleged the execution of the note by the defendants, its delivery to the plaintiff Mary E. Enos and averred that the defendants by said note promised to pay to the order of the plaintiff by the name, style and description of Eugene Enos the amount of said note. Attached to said narr and cognovit is the note indorsed by Mary E. Enos showing four credits, two for $500 each, one on February 8,1929 and another on April 2, 1929, another credit of $368.11 on October 3, 1929 and a $770.32 credit on November 4, 1929. The affidavit of Elfa M. Hutchin was also attached to the narr and cognovit and in this Elfa deposed that she was the agent of the plaintiff and made the affidavit for and on her behalf, and that there is due the plaintiff from the defendants after allowing all offsets and counterclaims the sum of $7,299.05.

On October 10,1934 Mary E. Enos was again in Mr. Robillard’s office. Minnie B. Hutehin was with her and at the request of Mary E. Enos, Mr. Robillard prepared an instrument which Mary E. Enos executed and which assigned the judgment of April 30, 1932 to Minnie B. Hutehin and appointed Minnie B. Hutehin her attorney in fact to collect it. In addition to the assignment Mary E. Enos executed another instrument which stated that she had assigned this judgment to Minnie B. Hutehin and recited as a reason for so doing that the note and judgment were the property of Elfa M. Hutehin and that the money loaned on the note was the money of the said Elfa M. Hutehin, that Eugene Enos, in his lifetime, made the deal and brought the note back made out in the name of Mary Enos, and that she immediately turned the note over to the said Elfa M. Hutehin as and for her sole property. These instruments were duly acknowledged and recorded in the recorder’s office of Kankakee county on July 13, 1937. An instrument dated November 7, 1928 and signed by Mary E. Enos, which acknowledged that she had received from Elfa M. Hutehin full payment for the Legris and Leuhrs and Son $5,000 note, dated May 2, 1923, was also offered and admitted in evidence.

A. L. Granger called as a witness on behalf of appellant testified that he was a lawyer and had practiced his profession in Kankakee since 1890 and was well acquainted with Eugene and Mary E. Enos; that Eugene had been a client of his for 25 or 30 years and consulted him frequently during that time. That he had also acted as attorney for Mrs. Enos and drafted several wills for her and in the final one she bequeathed her property to Minnie Hutehin instead of Elfa, who had died, and nominated Minnie executrix of her will; that she was a very bright woman but became a little forgetful a year or two before her death. He further testified that he, at her request, made a list of the contents of her safety box in 1930; that her property consisted largely of government bonds and aggregated in value about $50,000; that the note of May 2, 1923 was not there; that he acted as attorney for the conservator of Eugene Enos and settled his estate and the note of May 2, 1923 was not inventoried as a part of his estate, nor was the judgment ever inventoried as a part of the estate of Mary E. Enos. Mr. Granger further testified that Elfa M. Hutchin had something to do with Eugene’s business affairs and that she spoke to him on the street a qouple of years before Eugene’s death about the Legris note but just what the conversation was does not appear from the evidence.

It is the contention of counsel for appellant that the judgment obtained by Mary E. Enos on April 30, 1932 is void because it was obtained by a fraud upon the court which rendered it, that the fraud consisted of the statement contained in the affidavit of Elfa M. Hutchin to the effect that there was a certain amount due upon the note upon which judgment was rendered to Mary E. Enos. Counsel argue that inasmuch as the note was payable to Eugene Enos and was not indorsed by him that he or his representatives were the only ones entitled to take judgment thereon and in support of this proposition cite Elvin v. Wuchetich, 326 Ill. 285 and Collins v. Ogden, 323 Ill. 594. What these cases hold is that the mere possession of a negotiable instrument payable to order and not indorsed by the payee is not, alone, evidence of title either legal or equitable, in the possessor, but the burden is on the possessor to prove his equitable title by showing delivery to him with intent to pass title. The judgment attacked in the instant case was rendered in a suit wherein Mary E. Enos was plaintiff and the narr alleged that the makers of the note sued on promised to pay her, the plaintiff Mary E. Enos, by the name, style and description of Eugene Enos. The affidavit of Elfa M. Hutchin was to the effect that she was the agent of the plaintiff and that there was due the plaintiff upon said note the sum of $7,299.05. The proof is that at the time this judgment was taken the payee of said note was dead, that he had never been the owner of the note, had never had title thereto and had acted only as agent for someone else. The consideration, so the evidence discloses, was furnished out of a bank account carried in the name of Mary E. Enos. Mary E. Enos had placed her name on the back of the note. Elfa M. Hutchin had possession thereof and Mrs. Enos stated to the attorney who prepared the narr and cognovit and accompanying affidavit that the note was the property of Elfa and Minnie Hutchin. The statement in the receipt of November 7, 1928, signed by Mrs. Enos, might indicate that on that day Elfa had completed paying Mrs. Enos for this note, while the statement of Mrs. Enos attached to the assignment and which is dated October 10, 1934 indicates that it was Elfa’s money that was in Mrs. Enos’ bank account and which was paid out when the check of May 2, 1923 was honored by the bank on which it was drawn. From all the evidence found in this record, it is reasonable to conclude from the recitals in Elfa’s affidavit filed with the narr and cognovit at the time judgment was taken that she, Elfa, being the beneficial owner of all or a portion of the debt evidenced by said note, vested Mary E. Enos with possession and legal title thereto for the purpose of reducing the note to judgment and that Mary E. Enos, at the request of Elfa, consented to this procedure and after the death of Elfa assigned and transferred the judgment to Minnie Hutchin, appellee herein. These are the facts which distinguish the instant case and render inapplicable the principle of law relied upon by appellant and enunciated in the Elvin and Collins cases, supra.

In Bonner v. Gordon, 63 Ill. 443, the plaintiff William Bonner declared on a promissory note payable to him by the name and style of the First National Bank of Centraba. In reversing a judgment of the trial court which sustained a demurrer to that declaration, the court stated that it was extraordinary that Bonner should have taken a note payable to himself by the name of the bank but that the demurrer admitted that he did and that the defendants gave it. In the course of its opinion the court said that the mere production of the note would not prove the averment of the declaration but the fact would have to be proved on the trial. The judgment here attacked was entered by confession upon a warrant of attorney. Counsel for appellant concede that such a judgment is as impervious to collateral attack as is a judgment obtained in open court providing that the court entering the judgment by confession had jurisdiction. The only reason assigned why the court rendering this judgment did not have jurisdiction is that the warrant of attorney authorized judgment only to be taken in favor of the legal holder of the note and counsel argue, in the absence of any indorsement of the note by the payee, Eugene Enos, Mary E. Enos could not be the legal holder thereof and therefore the jurisdiction of the court which rendered the judgment was fraudulently invoked against the defendants. In support of this argument, counsel cite 15 R. C. L. at page 661, where it is said that where a judgment, under a warrant of attorney, annexed to a promissory note authorizing confession of judgment in favor of the holder, was rendered in favor of one who was not the holder, that then such judgment may be subjected to collateral attack. In support of this text the author of the article cites the case of National Exchange Bank v. Wiley, 195 U. S. 257, 49 L. Ed. 184. In that case it appeared that the note sued on was payable to the National Exchange Bank and had never been indorsed by it. Later the note was purchased by the Tiffin Nat. Bank, which then became the owner, but the note was not indorsed by the payee. Subsequently judgment was taken in the name of the National Exchange Bank and the Supreme Court held that as the payee was no longer the holder and owner of the note, it could not bring suit but that judgment should have been taken in the name of the owner who was entitled to receive its proceeds. What this case holds is that when a note is payable to one and unindorsed but actually owned by another, the judgment should be taken by the owner or by someone , designated by the owner. The trouble with appellant’s argument is that the evidence here disclosed that when this judgment was rendered the note was filed with the narr, cognovit and affidavit. The note was in fact produced by the plaintiff. She was, therefore, at that time, its actual holder. From that fact and the other evidence appearing in this record, it must be concluded that Mrs. Enos, the plaintiff, was the legal holder of the note for the purpose of instituting suit thereon and under the authorities the fact that some one other than the plaintiff may be entitled to the proceeds of the judgment can be of no concern to appellant. In Illinois Conference v. Plagge, 177 Ill. 431, the court said: ‘ ‘ Whether others have an equitable or beneficial interest in the proceeds of the collection of a note need not be disclosed, by the pleadings in an action at law by the party holding the legal title to the note. It is sufficient, in such case, the action is in the name of the holder of the legal title. ... A judgment in favor of a party having possession of a promissory note and legal title thereto will constitute a legal defense against the payee of the note, though such possession and legal title be merely for the purpose of accomplishing the collection of the paper.” In Manley v. Park, 68 Kan. 400, 66 L. R. A. 967, it is said: “When the owner of a note, for reasons satisfactory to himself, assigns it to another, thereby vesting in him the full legal title, the assignee becomes, so far as the debtor is concerned, the real party in interest. The original owner is still the person to be finally benefited by the litigation, but his legal demand is no longer against the maker of the note, but against the person to whom he has assigned it. When the obligor is sued by such assignee (no claim as innocent purchaser being involved), he can make any defense he could have made against the assignor; he is fully protected against another action; and in no way is it a matter of the slightest concern to him what arrangement between the plaintiff and the original creditor occasioned the assignment. ’ ’

A person having no interest in a note as holder or owner may not maintain an action thereon, 3 R. C. L. 990. The judgment here attacked was rendered by a court of general jurisdiction and having jurisdiction of the subject matter. The parties, plaintiff and defendant, submitted their persons to the jurisdiction of the court in the manner provided by law. The judgment rendered is not void and whether or not it may be voidable upon direct attack is not before us. Even if it should be held that Mrs. Enos was not entitled to bring the suit upon the note, that alone, in our opinion, would not show a want of jurisdiction or render the judgment a nullity. Stoff v. McGinn, 178 Ill. 46. In Wenner v. Thornton, 98 Ill. 156 at page 165, it is said: “Much has been said upon the assumption that an interest on the part of the plaintiff in the matter in litigation, is essential to give jurisdiction of the subject matter of a suit. But we do not acquiesce in such assumption, regarding that although it may appear on the face of the proceeding that the plaintiff is not entitled to bring the suit, yet, that does not make a want of jurisdiction of the subject matter and render a judgment for the plaintiff a nullity, — but that it would only be erroneous — that there would be but error in the exercise of jurisdiction, and not a lack of jurisdiction of the subject matter of the suit.”

There is no contention here by the makers of the note that the judgment was incorrect in amount or that any part of it has been paid nor are the judgment debtors questioning its validity. The allegation of the complaint charging that appellee, Minnie B. Hutchin, fraudulently procured Mary E. Enos to assign the judgment to her is not sustained by any evidence in the record and it clearly appears from all the evidence that there was no intent upon the part of anyone to perpetrate a fraud upon the court nor was anyone in fact defrauded by the procedure followed by Mary E. Enos, Elfa Hutchin or by appellee Minnie B. Hutchin.

The decree appealed from is the only one warranted by the evidence found in this record and it will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Chicago Title and Trust Company, Appellee, v. Flora B. Colby, Executrix, et al., Appellees. John S. Smith, Conservator of Clark C. Rolfe, Defendant, Appellant.
    Gen. No. 39,906.

      Heard in the first division of this court for the first district at the December term, 1937.
    Opinion filed October 31, 1938.
    Charles H. Mitchell and Frankel & Frankel, both of Chicago, for appellant.
    Weightstill Woods, of Chicago, for certain appellee.
    Weissenbach, Hartman, Craig & Okin, Harold L. Reeve and Charles F. Grimes, all of Chicago, for certain other appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is a foreclosure proceeding which was referred to a master whose report favored plaintiff and a decree was entered accordingly, from which John S. Smith, administrator, appeals.

The theory of the defense is that M. E. Greenebaum, the trustee in a prior trust deed, failed to enforce the provisions of a deed in trust from Lucy Eolfe, the original mortgagor, conveying the premises to one of her sons, Frederick H. Eolfe, directing him to apply a certain amount of the income to the payment of the mortgage debt secured by the Greenebaum trust deed.

Chicago Title and Trust Company, the present plaintiff, is not the trustee in the deed sought to be foreclosed but, as trustee in an active trust, is the owner of the indebtedness secured by the trust deed in question, which runs to the Central Trust Company as trustee.

The facts are a complete answer to the defense of Smith as administrator, and it is necessary to narrate them at some length.

In 1899 Lucy Bolfe owned the property in question and had executed her trust deed conveying it to M. E. G-reenebaum, trustee, to secure a note for $30,000; this note was extended from time to time and up to May, 1929, had been reduced to $22,500. Lucy Bolfe was the mother of two sons, Frederick H. and Clark C. Bolfe, and on October 10, 1902, she conveyed this property to her son Frederick, subject to the trust deed made in 1899 by her to Greenebaum, trustee; her deed conveyed to Frederick H. Bolfe an undivided half of the real estate in fee; the other undivided half was conveyed to him in trust with certain conditions. The deed in trust gave Frederick Bolfe, as trustee, full power to mortgage the entire property, pay existing liens, with “power to execute trust deeds and mortgages, to renew incumbrances upon said property in such amounts and upon such terms as he shall see fit,” with discretion also to sell and convey the property or any part thereof; that he also should reserve as a sinking fund at least 50 per cent, and in his discretion 75 per cent of the net income of the property to pay off the existing incumbrance, “to the end that said property shall ultimately be free from any incumbrance,” the remaining rents and income to be paid monthly to her son Clark C. Bolfe. Shortly after executing this deed in trust Lucy Bolfe died.

In. May, 1904, the $30,000 note matured and it was extended for five years, signed by Frederick H. Bolfe individually and as trustee and by Clark C. Bolfe, and by Greenebaum Sons as agents of Clara Owsley, owner of the mortgage note; in 1909 the mortgage debt was reduced by payment of $2,500, and payment of the balance, $27,500, was extended to May, 1912, by an extension agreement signed by Clark C. Bolfe and Frederick Bolfe, individually and as trustee. In May, 1912, and May, 1921, the mortgage debt was again reduced by payments of $2,500 and the balance extended to 1924, and again to 1929; when it matured in May, 1929, Clara Owsley was still the owner of the mortgage indebtedness.

At this time Frederick Rolfe applied to the Greenebaums for a five-year $20,000 first mortgage loan on the premises in question to take up the incumbrance of $22,500 due in May, 1929; Greenebaum Sons paid the old loan in full, using the proceeds of the new loan of $20,000 plus $2,500 advanced by Frederick Eolfe; he signed the new note for $20,000 individually and as trustee, and a trust deed to the Central Trust Company of Illinois, trustee, conveying the premises in question. Clara Owsley became the owner of the new mortgage. This is the trust deed being foreclosed.

In May, 1932, Clark C. Eolfe was declared insane and in February, 1933, both Frederick H. Eolfe and his brother Clark C. died. Clark C. Eolfe left no heirs; Frederick left two children, Flora B. Colby and Howard W. Eolfe; John Smith was appointed administrator of the estate of Clark Eolfe; the present complaint to foreclose was filed February 7, 1935.

The master’s report sets forth substantially the foregoing statement of facts and they are embodied in the decree. No objections were filed to the master’s findings of fact.

Plaintiff first suggests that the appeal of John Smith, administrator, be dismissed on the ground that his brief and argument filed in this court do not comply with Eule 7 of this court and do not present the issues clearly. We are in sympathy with this suggestion. Apparently no effort has been made by counsel for defendant Smith to comply with Eule 7. However, as we understand counsel for plaintiff, they wish to hav,e the case considered on its merits, and the motion to dismiss the appeal because of the insufficiency of the brief was withdrawn.

The argument of Smith is that M. E. Greenebaum, trustee in the mortgage debt of 1899, was the agent of Lucy Bolfe as well as of the owner of the mortgage, and that being* a professional fiduciary it was his duty to see that Frederick Bolfe, trustee, applied the amounts designated in the Lucy Bolfe deed of trust to the ex-tinguishment of the mortgage debt. The charge is made that Frederick Bolfe, trustee, misapplied income of the property which should have been used to pay the mortgage debt; that the Greenebaums, agents of Clara Owsley, owner, knew of this breach of trust and should have taken some action to compel the trustee to perform his duties. It is an extreme claim that the mortgagee in a situation like this incurs the peril of losing her lien if it appears from an audit of the trustee’s account that her mortgage debt should have been paid by the trustee.

However, there are a number of sufficient answers to defendant’s claims. There is no evidence in the record that Frederick Bolfe, trustee, misapplied trust funds. All evidence offered by defendant tending to show this was excluded by the master and this ruling was sustained by the chancellor. No evidence was offered tending to show that Greenebaum Sons knew that Frederick Bolfe, trustee, was not properly performing his duties.

The mortgage debt which defendant says should have been paid by Frederick Bolfe, trustee under the terms of the Lucy Bolfe trust, was created in 1899, three years before the conveyance by Lucy Bolfe to Frederick Bolfe, trustee, and in 1929 a balance of $22,500 of this mortgage debt still continued as a lien. The new loan, secured by a trust deed to the Central Trust Company as trustee, was merely a substitution of a new note and trust deed for the old one, which was still owned by Clara Owsley.

M. E. Greenebaum was not a party to the deed in trust from Lucy Bolfe to Frederick Bolfe, made in 1902, and hence owed no duty to see that Frederick Bolfe carried out the terms of the trust. Defendant cites no cases involving similar circumstances. It is undoubtedly true, as held in Williamson v. Stone, 128 Ill. 129, that a trustee in a trust deed made to secure payment of a debt must act impartially as between the two parties, and that this is the general rule has been held in many cases. But we find no case which holds that the trustee under such circumstances may go outside his obligations to the mortgagor and the mortgagee and compel a trustee in a document to which he is not a party to perform his duties.

Clark C. Bolfe was not declared insane until 1932, some three years after the making of the instant trust deed and note. Presumably up to that time he was competent to compel his trustee, Frederick Bolfe, to perform all his duties under the Lucy Bolfe trust.

There is no merit in the contention that Gfreenebaum Sons had no right to extend the time of payment of the 1899 note. The debt was being slowly reduced— from $30,000 to $20,000; the alternative to refusal to extend was foreclosure, which would certainly not be to the interest of the mortgagor.

There is merit in the point made by counsel for plaintiff that John S. Smith, as administrator of the estate of Clark C. Bolfe, deceased, has no interest either in the premises involved or in the rents. The Lucy Bolfe trust contained a provision that at the death of Clark C. Bolfe his trust estate should cease and the undivided half of the property so conveyed in trust for his benefit should vest in his heirs, and in default of such heirs should descend to the living heirs of Frederick Bolfe. In February, 1933, Clark Bolfe died, leaving no heirs; the trust then terminated and title to the half interest passed to the living chidren of Frederick Bolfe — Flora B. Colby and Howard W. Bolfe, defendants here. Since Clark Bolfe’s death his estate has no interest in the real estate in question.

The master properly excluded any evidence as to rents collected since 1933, and the present owners, Flora B. Colby and Howard W. Rolfe, apparently are in accord with this ruling. We fail to see what interest Smith, administrator of Clark Rolfe’s estate, has at present in the property. As the death of Clark Rolfe terminated his interest, what interest could his administrator have ? He may have a claim against the estate of Frederick Rolfe, and we are told he has filed such a claim, but this has no connection with or relation to this foreclosure proceeding.

There is no merit in the defense by John S. Smith, administrator of the estate of Clarke C. Rolfe, deceased.

Mr. Weightstill Woods has filed in this court a brief for Flora B. Colby, whom he described as appellee and cross appellant. Her standing in this court is somewhat doubtful, but assuming that she is here in the capacity indicated we have considered the points made by her. She first says that the remainder in fee to Flora B. Colby and Howard W. Rolfe, the children of Frederick Rolfe, vestéd in interest when Lucy Rolfe executed her deed in trust dated October 10 and recorded November 5, 1902, and vested in possession at the death of Frederick H. Rolfe February 24,1933. Inspection of the Lucy Rolfe deed in trust negatives this. Frederick was given full power to mortgage the property, pay existing liens, interest upon incumbrances or any renewals, execute trust deeds, renew incumbrances, or to sell or convey the property or any part thereof, the proceeds to be held in trust. As is said in Perry on Trusts and Trustees, 7th ed., vol. 1, pages 550-551: “to do any or all these acts requires a legal fee.” See also Lord v. Comstock, 240 Ill. 492, 502, and cases there cited. Lucy Rolfe clearly intended Frederick to have a legal fee. It is therefore unimportant to determine when title vested in Flora B. Colby and her brother Howard.

However, there can be no doubt that the remainders created by the deed in trust were contingent and did not vest until the death of Clarke Bolfe. The deed in trust in clear language states that upon the death of Clark the trust estate shall cease and the undivided half theretofore held in trust should vest in his heirs, and in default of such heirs in the living heirs of Frederick Bolfe. The remainder could not vest until it was determined in whom it should vest, whether heirs of Clark Bolfe or of Frederick, or in such heirs of Frederick as were living. Such remainders were contingent and the children of Frederick Bolfe had no vested interest prior to Clark’s death.

The above considerations also answer the point that the instant note and trust deed were the personal debt of Frederick H. Bolfe because, it is said, nothing contained in the note and trust deed identified them with the Lucy Bolfe trust. The trust deed being foreclosed recites that it is executed by Frederick H. Bolfe individually and as trustee under the Lucy Bolfe trust, describing it with particularity.

Other points are made by counsel for Flora B. Colby which present no substantial reasons calling for a reversal of the decree.

The case is an ordinary foreclosure proceeding. The ingenuity of astute counsel has made somewhat obfuscated what would otherwise be a clear and ordinary record.

No reasons are presented requiring a reversal and the decree is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


text:
    Jacob Cohen, Appellant, v. Millie Cohen and William Jacobs, Guardian of Millie Cohen, Appellees.
    Gen. No. 40,107.
    Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed October 31, 1938.
    Rehearing denied November 11, 1938.

      Samuel Schmetterer, of Chicago, for appellant.
    Walter A. Rooney, of Chicago, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is the second time this case has been before this court. (Cohen v. Cohen, 291 Ill. App. 39.) In our opinion in that case we stated the facts somewhat fully.

Jacob Cohen, hereafter called plaintiff, filed his petition in chancery alleging that his wife, Millie Cohen, was insane; that it was necessary to secure her signature to a warranty deed so as to relinquish her dower and homestead rights, and asked for a decree authorizing some person to execute such a deed on behalf of his wife and that a guardian ad litem be appointed for her. The proceeding was under section 17, ch. 68, Ill. State Bar Stats. 1935 [Jones Ill. Stats. Ann. 64.17]. Accordingly a decree was entered, the execution of the deed was authorized and William Jacobs, who is one of the defendants here, was appointed guardian of Millie Cohen.

It was also ordered that commencing December 1, 1927, plaintiff pay to Jacobs, guardian, $150 a month for the support of his wife, an insane person, not living with plaintiff.

Subsequently plaintiff made defaults in the monthly payments and in November, 1933, the guardian filed a petition alleging these defaults and asking that plaintiff show cause why he should not be held in contempt of court. Cohen filed amended and supplemental cross-petitions denying any personal liability for the monthly payments; reference was had to a master who made his report, and June 6,1935, the court entered an order which found that the arrearages had been settled and ordered the monthly payments reduced to $100.

April 28, 1936, the guardian filed another petition, asserting that plaintiff was again in default; to this an answer was filed, again asserting the court had no power to fix any personal liability on him for the support of his wife.

January 13, 1937, a decree was entered finding that plaintiff was in default and that no sufficient cause had been shown why these monthly sums should not be paid and no showing made that he was unable to pay them. Plaintiff was found guilty of contempt and sentenced to prison. Appeal from that order was taken to this court, where we affirmed the order as in accordance with the evidence and every principle of equity. We there said: “Insane persons have been from time immemorial the special consideration of the courts and the protecting arm has been extended in their behalf. It would be most unjust to hold that a court could not compel a husband, able so to do, to provide means of support and maintenance to his insane wife.”

December 7, 1937, the present petition was filed by the guardian, again alleging that plaintiff Jacob Cohen was in default on these monthly payments in the sum of over $1,000. The petition alleged that he was well able to comply with the order of the court; that he was president of the Cohen Brothers Furniture Company, which company was incorporated in the sum of $150,000 capital stock, all paid for; that he has transferred all his property to the names of his children for the purpose of evading the decree of the court; that he also carries life insurance policies in large amounts for the benefit of his children and in no policy is his wife a beneficiary; a rule was asked requiring plaintiff to show cause why he should not be punished for contempt. To this plaintiff filed an answer alleging that he was unable to pay $100 a month for the support of his wife; that his only income is $25 a week and that he has no other source of income; that he is not now president of Cohen Brothers Furniture Company and that he now has no interest in said company.

He also asserted that he had learned that his wife has a separate income of her own from a trust fund of $20,000 and that this income can be used for her support and maintenance. Plaintiff again asserted that his failure to pay was due to his inability. Hearing was had before the trial court, which consisted of the testimony of plaintiff; after hearing the court entered an order finding plaintiff guilty of contempt and ordering him committed to the Cook county jail for six months, or until he pay the sum of $1,403.32. The appeal is from this order.

Plaintiff in this court earnestly urges that the trial court committed error in rejecting plaintiff’s offer to prove that subsequent to the order of June 6, 1935, which fixed the monthly payments at $100, he had discovered that his wife had a separate income from a $20,000 trust fund which was being used for her support and maintenance. The court properly excluded this evidence, as this information was available to plaintiff in 1933, when the guardian first filed his petition. In plaintiff’s answer filed November 13, 1933, the trust fund of $20,000 was asserted, and that the income from this was at the command of the guardian for the support of plaintiff’s wife. In the offer of proof upon the present hearing nothing was said as to when Jacob Cohen first learned of the existence of this trust fund. It is apparent that when the court entered the decree of June 6, 1935, this trust fund was brought to his attention, and it is a fair presumption that when, by the decree of June 6, 1935, the monthly payments were reduced from $150 to $100, the court took into consideration the income from this trust fund.

It is well settled that the rule concerning res judicata extends to all matters properly involved on the prior hearing. A litigant may not try his action piecemeal. Godschalck v. Weber, 247 Ill. 269.

The testimony of Cohen as to his inability to pay is just the same as it was upon the prior hearing and upon which we commented in our former opinion. We there said that while the court may change such an allowance where the circumstances have changed since the prior order, after a lapse of time it has no power to reverse or modify a decree for the payment of money upon the same facts that existed at the time of the entry of a decree. We also noted that the evidence of plaintiff was not such as to impress the court with its truthfulness.

Upon the present hearing, when cross-examination was commenced, plaintiff complained of a heart attack and was removed from the court room, so that there was no cross-examination.

The trial court commented upon the fact that the record shows plaintiff had continuously claimed “that he had not money enough to pay and yet was compelled to pay each time. ’ ’ The court with some feeling commented on the conduct of plaintiff and his sons in attempting to defeat a decree given for the support and maintenance of the wife and mother, saying that plaintiff’s “bad faith has been shown throughout this whole proceeding.” We are in sympathy with this comment.

It appears that Millie Cohen has been for many years past in the custody of William Jacobs, her guardian, who is her brother, and in one of the petitions filed by Jacob Cohen it is intimated that this litigation arises from “a family quarrel which has existed for a great many years”; and also, plaintiff protests against the claimed efforts of William Jacobs, the guardian, to regulate the life not only of the insane woman but also of plaintiff and his two children. This seems to be the animus moving plaintiff’s conduct.

The record before us on this appeal with reference to the points presented on behalf of plaintiff shows virtually the same state of facts as was shown upon the prior appeal. Under such circumstances the order appealed from is affirmed.

Affirmed.

Matchett and O’Cohnor, JJ., concur.


author: Mr. Justice Matchett McSurely, P. J.,

text:
    Nestor Johnson Manufacturing Company, Appellee, v. Morris Goldblatt et al., Appellants.
    Gen. No. 39,751.
    McSurely, P. J., dissenting.

      Heard in the first division of this court for the first district at the October term, 1937.
    Opinion filed October 31, 1938.
    Pritzker & Pritzker and Harvey L. Hanson, both of Chicago, for appellants; Richard Weinberger, of Chicago, of counsel.
    Zane, Trueblood & Johnson, of Chicago, for appellee; Franklin D. Trueblood and Craig R. Johnson, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

By suggestions in writing filed May 15, 1933, in a proceeding auxiliary to the original suit, after final decree therein, defendants claimed damages for solicitors’ fees necessarily rendered by reason of the wrongful issuance of a temporary injunction. Complainant answered. There was a reference, a report, with objections and exceptions thereto overruled, and April 14, 1937, a decree disallowing and dismissing the claims. Hence this appeal.

The original suit, filed December 19,1927, was for alleged malicious conspiracy to injure the trade of complainant by unfair competition. The relief prayed that defendants pending the suit be enjoined temporarily and upon the hearing perpetually. The temporary injunction issued the day the bill was filed.

The case is before this court for the third time. First, in Nestor Johnson Mfg. Co. v. Goldblatt, 250 Ill. App. 644, the complainant appealed from an order entered December 27, 1927, dismissing the bill on complainant’s motion. • Prior thereto, on December 23, the court, on motion of defendants, dissolved the temporary injunction. The order of dismissal was entered and the appeal therefrom taken by complainant in conformity with the practice approved in Williams v. Chicago Exhibition Co., 188 Ill. 19, and other cases. This court held that the bill of complaint disclosed prima facie a case of conspiracy to carry out a scheme of unfair competition “remediable by injunction,” reversed the decree of December 27 and remanded the cause with directions for a rule on defendants to plead or answer and for a trial on the merits. December 20, 1928, the superior court reinstated the temporary injunction and it was continued in force until extinguished by another final decree entered January 22, 1931. Pending these proceedings defendants again moved to dissolve the temporary injunction. The motion was denied “until the hearing of the evidence on bill and answer is concluded.” There was no further hearing on that motion. The cause was referred to a master who took the evidence and reported against the complainant and recommended that the bill be dismissed for want of equity. Objections overruled by the master stood as exceptions, and the court sustaining these exceptions entered a decree in favor of the complainant on the merits January 22, 1931. This decree granted to the complainant a permanent injunction. Neither the report of the master nor the decree of the court referred to the temporary injunction. The second appeal to this court was by defendants from this decree. The decree was reversed and the cause remanded with directions to dismiss the bill for want of equity. Nestor Johnson Mfg. Co. v. Goldblatt, 265 Ill. App. 188. Complainant petitioned the Supreme Court for writ of certiorari, which was denied. (265 Ill. App. XIV.)

April 25, 1933, pursuant to mandate from this court a final decree was entered in favor of defendants. This decree set aside the former decree of January 22,1931, and directed “that the injunction heretofore ordered and issued by this court against each of the defendants herein be and the same is hereby dissolved” and the bill of complaint dismissed for want of equity, reserving jurisdiction to pass upon the questions of damages.

May 15, 1933, thereafter, the defendants G-oldblatt and Planert filed their amended and supplemental suggestions. Groldblatt claimed $17,000 for solicitors’ fees “in procuring a dissolution of the injunction,” $310.88 for printing briefs and arguments used in the two appeals, and $10,000 for loss of profits during the period the temporary injunction was in force, a' total of $27,310.88. Defendant Planert claimed $9,477.55 “for the reasonable fees and charges of its solicitors and counsel,” $803.42 for charges of printers for abstracts and briefs, for court reporters and copies of papers used in and about procuring the dissolution of the injunction, and $187.50 mentioned in the original suggestion of damages, a total of $10,468.47.

The complainant filed separate answers denying the right of either to recover the damages claimed. The cause was referred to a master who took the evidence and in conformity with it found the value of the respective items for all services rendered by attorneys for the defendants in connection with the case. The master, however, concluded and reported that the decision of the Appellate Court on the first appeal that the temporary injunction had been properly issued became the law of the case; that at the time of the second appeal the temporary injunction had been superseded by and merged in the permanent injunction; that no dissolution of the temporary injunction was involved in the second appeal. The master held that the statutory provision for the assessment of damages in an injunction suit is limited to damages arising out of the dissolution of the temporary injunction and has no application to services performed in the defense of the suit on the merits; that the services rendered by solicitors for the defendants were rendered in connection with the trial of the entire case on all issues involved, and that defendants were not entitled to recover. The master recommended the suggestions should be dismissed and a decree to that effect was entered by the chancellor, as already-stated.

No proofs were offered before the master as to the value of services limited to obtaining the dissolution of the temporary injunction as distinguished from services directed to the defense of the suit on the merits, and no evidence of damage to the business of defendants was offered. The question for decision is whether in a case where the sole relief asked is a permanent injunction with a preliminary injunction granted pendente lite, and a decree upon the merits has been entered in favor of the defendants, the defendants under the statute are entitled to recover sums expended for solicitors’ fees for services rendered in the defense of the case on the merits and in subsequent appeals. The question requires an interpretation of section 12 of the Injunction Act (see Ill. Rev. Stat. 1937, ch. 69, p. 1772 [Jones Ill. Stats. Ann. 109.360]). It is:

“Assessing Damages — Suit on bond. In all cases where an injunction is dissolved by a court of chancery in this state, the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain, to the party damnified by such injunction, and may award execution to collect the same: Provided, a failure so to assess damages shall not operate as a bar to an action upon the injunction bond.”

A careful analysis of the section precludes the interpretation for which defendants contend. The section consists of a single sentence somewhat involved, but the subject of the sentence is the word “court,” which the predicate states shall assess damages such as the nature of the case may require. The various phrases and clauses of the sentence limit the action of the court in many ways. First, as stated in the first paragraph, “to all cases where an injunction is dissolved.” The adjective “all” modifies the noun “cases,” and the phrase “all cases” is limited by the clause “where an injunction is dissolved by a court of chancery in this state.” Second, the assessment of damages as to time is to be made “after dissolving such injunction”; third, “before finally disposing of the suit”; fourth, “upon the party claiming damages by reason of such injunction”; fifth, “suggesting, in writing, the nature and amount thereof”; sixth, “shall hear evidence”; seventh, the damages given are to be “as the nature of the case may require”; and eighth, “to the party damnified by such injunction.” “Such injunction” refers evidently to the injunction which is dissolved. It is apparent from this analysis that it was not the intention of the legislature to grant authority to the court to assess damages except in all cases where an injunction issued and had been dissolved, and that the damages are limited to such as the party or parties have sustained by reason of “such injunction.”

The case of Lambert v. Alcorn, 144 Ill. 313, is decisive. There the complainant filed a bill to restrain defendant from putting in a system of drains on his own land and extending the same across adjoining land. The defendant answered denying the equity of the bill. Upon the filing of the bill a temporary injunction was issued which as to a part of the real estate involved was dissolved upon the hearing and damages assessed pursuant to this section of the statute. Complaint was made of this assessment upon appeal. The court said that it was the manifest intention of the trial court to assess as damages the entire cost of defending the suit to the extent to which it was successful; that the solicitors’ fees shown were for the entire services of the solicitors in defending the suit; that there was evidence that a motion for dissolution had been made but never decided on account of the illness of the judge. The opinion points out that (as here) the evidence failed to distinguish between services rendered on the motion to dissolve and those rendered in defense of the suit upon the merits, and continues:

‘ ‘ The rule is, that a defendant may recover, as damages on dissolution of an injunction, the solicitor’s fees which he has paid or become obligated to pay, for services rendered in obtaining a dissolution of the injunction, but not those rendered in the general defense of the suit. Jevne v. Osgood, 57 Ill. 340; Alexander v. Colcord, 85 id. 323; Field v. Mendenwald, 26 Ill. App. 642; Gerard v. Gateau, 15 id. 520. In Alexander v. Colcord, supra, it was held to be serious objection to the evidence in support of a suggestion of damages of this character, that it made no discrimination between services rendered in the case generally, and services which were strictly necessary to procure a dissolution of the injunction. That discrimination not being made in this case, there is no evidence upon which the assessment of damages can be based. It follows that the portion of the decree relating to damages can not be sustained.

“Perhaps the view was entertained by court and counsel at the time of the assessment of damages, that as the only relief sought by the bill was an injunction, the entire defense was virtually directed to the sole object of procuring a dissolution of the injunction, and therefore that all the services rendered in the case must be deemed to have been rendered for that purpose. The relief sought by the bill was a perpetual injunction restraining the defendant from laying his proposed tile drain, and an injunction pendente lite was a mere ancillary writ which the complainant was at liberty to apply for or not as he saw fit. ... In a litigation of this character, the services rendered in the general defense of the suit are as clearly distinguishable from those rendered for the mere purpose of getting rid of an injunction pendente lite, in case one has been issued, as they are in cases where relief of a different character is sought.”

Defendants say that they have been able “to find only one case in the United States which is in point, ’ ’— Andrews v. Glenville Woolen Co., 50 N. Y. 282. An examination discloses that it is not applicable. Neither section 12 of the Illinois statute nor any similar statute is there construed. An injunction there was issued against the collection of certain judgments, a purpose quite distinct from that for which it issued in this case and a matter which is covered by other sections of our injunction statute. What particular statute, if any, was interpreted in the Andrews case is not disclosed by the opinion. A New York case upon its. facts more like the instant one is Allen v. Brown, 5 Lans. (N. Y.) 511, 514, which seems to sustain complainant’s rather than defendants ’ theory. At any rate the Illinois cases construing an Illinois statute are controlling.

Defendants cite Joslyn v. Dickerson, 71 Ill. 25, and Cummings v. Burleson, 78 Ill. 281. One of these cases involved an injunction to restrain the enforcement of a judgment at law and the other a final decree. Proceedings of this nature are controlled by other sections, namely, 4, 6, 7 and 8 of the injunction statute.

Darst v. Gale, 83 Ill. 136, is also cited. There Darst filed a bill against Gale and others to enjoin the sale by them of real estate conveyed by trust deed to secure the payment of certain bonds. A preliminary injunction issued. Defendants answered and filed a cross-bill praying an injunction to restrain complainant from taking possession of the property for a receiver, etc. Complainant answered the cross-bill. The cause was heard on the merits and a decree was entered dismissing the original bill and granting the relief prayed by the cross-bill. The complainant appealed to the Supreme Court where alleged errors in entering the decree upon the merits were given consideration and the decree affirmed. Upon suggestions of defendants damages had been assessed against Darst to the amount of $500. It was argued that damages could be allowed only where a motion was made to dissolve the injunction or on final hearing when the only relief sought was by injunction. The amount of the damages was also questioned as excessive. The court held that the statute was not so limited. The opinion does not purport to decide the question here presented. The record does not disclose for what particular items damages were allowed, whether attorneys’ fees or otherwise. The opinion, however, states:

“It is true, as was held in Jevne v. Osgood et al., 57 Ill. 340, the proof should be confined to expenses incurred in consequence of the injunction, and it would be improper to include attorney’s fees for services rendered about a branch of the case independent of the injunction; but where injunction is part of the relief sought, it is within the letter and spirit of the statute that expenses, properly incurred on account of the injunction, may be assessed on its dissolution.”

The opinion was filed in the September term, 1876, when the Supreme Court consisted of three judges, one of whom (Mr. Justice Breese) dissented as to damages, saying: “I think a rule has been adopted at variance with previous decisions of this court on this point.”

The complainant says that this decision was rendered in the construction of a former, not the present, statute, and that the case has not been since cited with approval. Neither observation is correct. Section 12 of the Injunction Act became law February 21, 1861 (Gross’ Stats., 1869, p. 459, sec. 12), and with the exception of the proviso (immaterial here) has remained the law ever since. The decision has also been cited (but not to the point here involved) in the recent case of Crozier v. Freeman Coal Mining Co., 363 Ill. 362, 2 N. E. (2d) 293. The Darst case was cited in the brief of defendant in Lambert v. Alcorn, 144 Ill. 313, at page 317, but is not mentioned in the opinion. It is apparent, we think, it was not regarded as inconsistent with the rule announced in that case. The Darst case does not purport to decide the question presented here. The rule laid down in the Lambert v. Alcorn case has been followed so often in the courts of this State that it may be said to have become woven into the web and woof of our law. Prior to the enactment of this statute it was error for a court of equity to assess damages upon the dissolution of an injunction (Phelps v. Foster, 18 Ill. 309), and in an action at law on the case for improperly causing a writ of injunction to be issued would not lie. Gorton v. Brown, 27 Ill. 488.

Illinois cases inconsistent with the construction for which defendants contend are Jevne v. Osgood, 57 Ill. 340; Elder v. Sabin, 66 Ill. 126; Blair v. Reading, 99 Ill. 600; Moriarty v. Galt, 125 Ill. 417; Walker v. Pritchard, 135 Ill. 103; Kohlsaat v. Crate, 144 Ill. 14; Landis v. Wolf, 206 Ill. 392; Marks v. Columbia Yacht Club, 219 Ill. 417. The Appellate and Supreme Court eases are reviewed in Leonard v. Pearce, 271 Ill. App. 428, where, citing 32 Corpus Juris 475, and 14 R. C. L. 487, 488, the opinion states that counsel fees which may be recovered “are limited to those necessary in procuring such dissolution, and if a defendant, instead of attempting to remove the preliminary injunction, seeks rather to prevent the issuing of a permanent injunction or directs his efforts to defeating the action of complainant, the expense of counsel fees incurred is an incident of the suit and is not recoverable as damages sustained by reason of the injunction, and if there is nothing to show what portion of the services were rendered in attempting to procure such dissolution, as distinguished from those rendered in general defense of the suit, there can be no recovery. ’ ’

In Dempster v. Lansingh, 234 Ill. 381, it was contended that it was improper for the court to hear suggestions of damages until the cause was before the court on final hearing and after determination whether the relief sought should be granted. The Supreme Court held against this contention and said that the time for hearing was within the discretion of the chancellor “with the express limitation that it must be after dissolving such injunction and before finally disposing of the suit.” Darst v. Gale, 83 Ill. 136, and other cases were cited. The court also said:

“The law is, that where the injunction is ancillary to the principal relief sought, fees for defending the suit generally should not be assessed as damages upon the dissolution of the injunction. ’ ’ Lambert v. Alcorn, 144 Ill. 313; Walker v. Pritchard, 135 Ill. 103, and the Jevne case were also cited with approval.

In Scherzer v. Keller, 321 Ill. 324, the court, citing Marks v. Columbia Yacht Club, Landis v. Wolf, and Dempster v. Lansingh, said that the fact that the filing of the answer and preparation of the motion to dissolve also simplified the preparation for the defense of the cause on the merits was not material; that where the injunction was merely ancillary to the principal relief sought by the bill and its dissolution incidental to the defense made, “counsel’s fees incurred in defending the suit generally cannot be assessed as damages, but where - they are necessarily incurred in procuring a dissolution of the injunction they may be allowed as damages.”

Lambert v. Alcorn has never in any case been distinguished, criticized or overruled. The rule there stated is consistent with the clear distinction between preliminary and perpetual injunctions as to their nature, purpose and function. Kerr on Injunctions, 6th Ed., p. 2; Shrewsbury & Chester Ry. Co. v. Shrewsbury & Birmingham Ry. Co., 1 Sim. N. S. 410, 426; Flippin v. Knaffle, 2 Tenn. Ch. 238, and expresses the reasonable interpretation of the words of section 12 of the statute. As was said by the Supreme Court in Jevne & Almini v. Osgood, 57 Ill. 340, at p. 346: “The design of the statute is not that the defendants shall, where the injunction is dissolved, recover his attorney’s fees for all that has been, or may be, done in the case. To give the statute such an unreasonable construction, would render it an instrument of great oppression.”

The decree is affirmed.

Affirmed.

O’Connor, J., concurs.

McSurely, P. J.,

dissenting: In Darst v. Gale, 83 Ill. 136, 144, in construing the injunction section under consideration it was held that, This clearly covers all cases, as well where the injunction is but part of or incident to the principal relief sought, as where it is the sole object of the bill; and the damages to be assessed after the dissolution of the injunction and before finally disposing of the suit, are such as have been sustained, without regard to whether the injunction was dissolved by an interlocutory order on motion for that purpose, or on final hearing.” This was quoted with approval in the recent case of Crozier v. Freeman Coal Mining Co., 363 Ill. 362, 396, 397, citing the additional cases of Kohlsaat v. Crate, 144 Ill. 14, and Walker v. Pritchard, 135 Ill. 103. The majority opinion seems to me to be to the contrary, and I respectfully dissent.


author: Mr. Justice O’Connor

text:
    Chicago Title and Trust Company, Appellant, v. Otto C. Braese et al. David G. Falk et al., Appellees.
    Gen. No. 39,991.

      Heard in the first division of this court for the first district at the February term, 1938.
    Opinion filed October 31, 1938.
    Shulman, Shulman & Abrams and A. Edmund Peterson, both of Chicago, for appellant; Meyer Abrams, of counsel.
    Foster Schlutz, of Chicago, for certain appellees; Maurice L. Davis, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

The Chicago Title and Trust Company, a corporation, as trustee in a trust deed given to secure an indebtedness of $60,000, filed its bill of foreclosure. Afterward, on December 22, 1933, a decree of foreclosure was entered which provided that if the indebtedness found due was not paid within five days the property be sold. So far as the record before us discloses, nothing further was done until December 16, 1936, when the master in chancery filed his report of sale, in which he stated that pursuant to the decree entered December 22, 1933, he advertised the property for sale on November 6, 1936, at one o’clock in the afternoon; that at the time and place designated he offered the property for sale, whereupon “Leonard F. McGee, as Nominee of the Bondholder’s Committee,” bid $21,000 and that he sold the property to McGee, but that McGee did not produce any money or any bonds in foreclosure. December 16 the court entered an order which recites the coming on to be heard of the master’s report of sale, and it was ordered that the sale be held for naught and that the master readvertise and sell the property in accordance with the decree.

October 21, 1937, the master filed his report of sale, setting up that pursuant to the decree he had offered the property for sale at one o’clock on the afternoon of October 8, 1937, and received the following bids: From S. F. Gelbort $10,500; Louis Steinbrecher $11,000; Nathan Schwartz 12,000; S. F: Gelbort $12,500; Leonard F. McGee, $13,000; Louis Steinbrecher $24,000; that Louis Steinbrecher had not made good either of his bids — had not deposited any money with the master; that S. F. Gelbort did deposit with the master, at the time and place of the sale, the full .amount of her bid — $12,500. The report continued that the master had reported all the bids made, and asked for “the direction of the court relative to the acceptance or non-acceptance of said bids, or any of them.” October 20, the day before the report was filed, counsel for Gelbort served notice on all parties, including the solicitors for complainant, that on the next day he would appear in court and present the report of the master and “ask that the court direct the master in chancery to issue his certificate of sale to S. F. Gelbort, purchaser at the said sale, and to approve the sale of the real estate involved in this proceeding, to S. F. Gelbort.” Pursuant to notice, the report was filed on October 21 and on the same day the court entered an order reciting that the matter came on for hearing upon the master’s report of sale and upon the motion of S. F. Gelbort, bidder at the sale held by the master October 8, and that due notice had been given to all parties in interest. The court found that the master had given notice of the holding of the sale in conformity with the provisions of the decree and of the statute; that the master had attended the sale at the time and place mentioned in the notice and had received the bids above stated, except that it was found by the order that $24,000 “was bid by Leonard F. McGee in the name of Louis Steinbrecher,” but that no part of either of said bids of $13,000 or $24,000 was paid at the time of the sale or at any time thereafter; that S. F. Gelbort, at the time of the sale, when it was ascertained that McGee had not made good either of his two bids by depositing moneys with the master, “immediately asked that the bid of S. F. Gelbort be accepted, and thereupon paid $12,500” to the master, being the full amount of her bid. The court further found, “That the said proceedings by said master in chancery were and constituted a sale of said real estate of S. F. Gelbort, at the price of $12,500,” and it was ordered that the master forthwith execute and deliver to Gelbort a certificate of sale as required by the decree and by law, and file a duplicate of the certificate with the Registrar of Titles; and it was further decreed that the sale of the real estate by the master to Gelbort for $12,500 “be and the same is hereby approved and confirmed.”

November 22 counsel for David G. Falk, who is described as “petitioner,” served notice on all parties, including solicitors of complainant, that on November 22 he would present his petition and ask for an order in accordance with the prayer of it. November 22 the verified petition was filed by Falk and sets up that he is the present legal owner of the fee simple title to the real estate in foreclosure; that October 8, 1937, the master in chancery sold the property to him, and that such sale was afterward approved by the court; that after the approval of the sale Falk redeemed from the sale and filed the necessary documents with the registrar of titles of Cook county; that the real estate was in the possession of McCarthy, a receiver appointed in the foreclosure suit; that the receiver had certain rentals he had collected from the premises; that if the receiver were to continue until the period of redemption expired, viz., January 8,1939, the net income realized from the premises available for distribution to the complainant, for the benefit of the bondholders secured by the trust deed, would not exceed $1,200, which sum Falk offered to pay into court in order to obtain possession of the premises at once, and that the $1,200 would be applied on account of the deficiency decree in full satisfaction of the lien on the rents on account of such deficiency; that it would be desirable to pay the $1,200 to the master at once so that it might be distributed to the parties entitled to it; and the prayer was that upon payment by Falk to the master of $1,200, the lien of the deficiency decree on the rents be satisfied and that the receiver be directed to forthwith surrender possession to Falk.

Next appears in the record before us an order entered December 3, 1937, which recites that upon the consideration of Falk’s verified petition, on due notice to all parties in interest, (setting up the facts as alleged in the petition — that Falk had redeemed the property from the foreclosure sale, etc.) the court found that Falle should pay $2,000 into court to be applied on the deficiency decree, that this amount was fair and reasonable, and that upon payment of the amount the lien of the deficiency be satisfied. And the order finds that thereupon Falk paid the $2,000 to the master, who was directed to distribute it and apply it toward the payment of the deficiency decree; that the receiver surrender possession at once to Falk and that the receiver forthwith assign and deliver to Falk all the unexpired policies of insurance covering the property. Written on the bottom of this order appears the following : “To the entry of the foregoing order the complainant O. T. & T. Co. as trustee objected in open court and said objection is overruled.”

Next appearing in the record filed by complainant in this court is the notice of appeal filed December 23 by the Chicago Title and Trust Company by its solicitors, giving notice that it is appealing from the order approving the master’s report of sale entered October 21,1937, and the order of December 3 whereby the possession of the premises was delivered to Falk. That record was filed January 11, 1938, in the office of the clerk of this court. Afterward, on March 17, 1938, the other side filed an additional record from which it appears that November 22, 1937, the following order was entered:11 Upon a consideration of the verified petition of David G-. Falk, this day presented herein on due notice to all parties entitled thereto, It Is Ordered that leave be given to file said petition, and that the hearing thereon be continued to December 3, 1937, at 10:00 A. M.”

In the additional record there is also an order entered December 14 in which it is recited that the cause came on to be heard upon the motion of McCarthy, the receiver, for the approval of his Third Current Report and Account, and upon motion of solicitor for complainant it was ordered that the receiver be given leave to file his report instanter, and it was further ordered that all parties be given two days within which to file objections to the receiver’s report, and that the hearing of the objections be set for December 17 without further notice. The additional record shows that on December 17 complainant filed its objections to the receiver’s report. The objections were: “1. That pursuant to the decree of foreclosure and sale theretofore entered herein the premises therein described were sold on October 8, 1937, to one S. F. Gelbort” for $12,500; that subsequently an order was entered “approving the said sale for said amount” and decreeing a deficiency in excess of $62,000 in favor of complainant for the use and benefit of the holders of the unpaid bonds; that thereafter Falk, who was the owner of the equity of redemption, redeemed from the sale. 2. That on December 3, 1937, an order was entered directing the receiver to surrender possession to Falk and that he file his final account within 20 days and pay all funds in his hands to the master in chancery for distribution ; that the order provided that Falk pay $2,000 which would be applied on the deficiency decree, and the premises released from the lien of such deficiency. 3. That in the receiver’s final account there was an item of disbursement of $801.81 in payment of insurance premiums; $315.90 expended July, 1937, and $485.91 expended during September, 1937; that the receiver’s report also showed an item of expenditure in October, 1937, of $383 for repair of the boiler in the premises, and that the court should equitably prorate these items between the owner of the deficiency decree and Falk, and the objections concluded, “Wherefore, this complainant objects to the allowance in full of the items hereinabove referred to . . . and prays that an order be entered herein directing a just and equitable proration of said items as between” complainant, as owner of the deficiency decree, and Falk, and that Falk be directed to reimburse the receivership estate after such prorating had been made.

Complainant contends that the record discloses the master made no sale of the property, as appears from his report which showed that he had received certain bids and asked for instructions. We think this contention is hypercritical and, moreover, that complainant is in no position to urge it in this court. The master had advertised the sale and received a bid of $21,000 from Leonard F. McGee, who failed to pay any money. The master reported the proceedings to the court and the chancellor held the sale was a nullity and ordered the master to readVertise and sell the property. This was done and the master reported the several bids, as above stated. At that time McGee again bid $13,000 and made another bid of $24,000 in the name of Louis Steinbrecher, but again he failed to put up any money with the master, and thereupon, at the time and place of the sale, S. F. Gelbort, who was the next highest bidder, made good her bid by depositing the $12,500 with the master. The master reported this to the court and the court found the sale was made to Gelbort for $12,500 and it was confirmed. It would have been an idle ceremony for the chancellor, upon receiving the master’s second report, to have ordered him to go through the formality of accepting the bid and then confirming the sale to Gelbort for $12,500. The master had already received that amount of money from Gelbort in satisfaction of her bid. The law never requires the doing of a useless act. Moreover, counsel for complainant had been served with notice in all these proceedings and no objections seem to have been made by him. Nor was any objection made when Falk filed his verified petition in which he says the property was sold to him by the master. Just why this allegation was made was not explained. The sale was made to Gelbort. But the point is immaterial. Afterward the receiver filed his third and final account, which does not appear in the record, to which the complainant, by its solicitors, filed objections, which we have above noted. These objections were not in the record filed by complainant here, and apparently counsel for complainant sought to avoid the effect of them by not bringing them to our attention. But, as stated, they were supplied by the other side. In the objections filed by complainant, through its counsel, one recites that the property had been sold on October 8 to Gelbort for $12,500 and that the sale had been approved by the court. And the only objection to the report was the prorating of certain items of expenditure. In these circumstances, complainant by its counsel will not be permitted to stultify itself and now contend in this court, for the first time, that there was no sale by the master.

Nor, in view of the record, is there any merit in the further contentions made by counsel for complainant that the notice of the sale given by the master violated the terms of the decree, or that the court erred in discharging the lien of the deficiency by the payment of $2,000 by Falk. From what we have said it is obvious that complainant is in no position to urge here, for the first time, that the master did not give a proper notice, as required by the foreclosure decree. Nor is there any merit in the contention that the court should have heard evidence as to the reasonable amount of rental that might be expected to have been received during the period of redemption. Falk’s petition was verified; it set up that $1,200 would be all that might be expected to be realized by the receiver during such period. Notice was served on all parties and no objection appears to have been made and no answer was filed by complainant to the petition. The court required Falk to pay $2,000. We think this was sufficient to warrant the court in entering the order requiring the receiver to surrender possession of the premises, the $2,000 having been paid by the owner of the equity to the receiver.

The orders of the superior court of Cook county are affirmed.

Orders affirmed.

Hc-Surely, P. J., and Hatchett, J., concur.