author: Mr. Presiding Justice Hall

text:
    Gilbert F. Wagner, Appellee, v. W. G. Maguire et al., Appellants. Appeal of William G. Maguire and W. G. Maguire and and Company, Inc.
    Gen. No. 39,791.
    Heard in the third division of this court for the first district at the October term, 1937.
    Opinion filed October 26, 1938.
    Joseph A. Struett and Thomas Dodd Healy, both of Chicago, for appellants; Robert J. Burdett, of Chicago, of counsel.
    Leo Waxman, George F. Callaghan, Maurice L. Davis, John L. McInerney and George E. Levings, all of Chicago, for appellees; George L. Siegel and George E. Levings, of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

By his bill of complaint, plaintiff charges that about February 2, 1931, Frank P. Parish and Peter B. Nelson, as trustees for W. G. Maguire & Co., Inc., among other securities, deposited in a safety deposit box in the Bank of Montreal in Toronto, Canada, 40,000 shares of the capital stock of the Missouri-Kansas Pipe Line Company, referred to in the record as “Mokan”; that under the terms of a written agreement dated March 14,1934, entered into between Frank P. Parish, William G. Maguire and W. G. Maguire & Co., Inc., Parish thereafter acquired a one-third interest in and to the shares of stock mentioned; that thereafter Parish assigned to Gilbert F. Wagner, an attorney at law and plaintiff herein, 6,000 of such shares for services rendered by him to Parish, and that Parish also assigned the balance of the stock so acquired by him, amounting to 7,333 shares, to Monroe Percy Bloch, another lawyer, one of the defendants here, who had represented Parish in certain matters hereinafter mentioned. It is also alleged that about April 10, 1934, Parish, by written notice, resigned as trustee under the agreement between himself and W. G. Maguire & Co., Inc., and by the terms of this agreement, appointed and designated George F. Mara as trustee in his place and stead, and that Nelson and Mara were, at the time of the filing of the bill, the sole trustees under such trust arrangement. Plaintiff prayed for the appointment of a receiver of the trust estate, consisting of the shares of “Mokan” stock covered by his contract, and for an adjudication and distribution of this stock to the persons decreed to be entitled thereto. He also prayed for an allowance to him of his costs and reasonable attorney’s fees.

Monroe Percy Bloch, by answer and cross complaint, alleged that he was entitled to 6,000 shares of this stock, together with any remaining balance of such shares to which Parish was entitled under the terms of the agreement between the parties entered into on March 14, 1934, after the delivery of the 6,000 shares claimed by the plaintiff. Parish, who was made a defendant in the bill, admitted all of the claims of the plaintiff, and stated that he had no interest in the property or the litigation, except in seeing to it that the agreement referred to, entered into between himself, William G-. Maguire and W. Gr. Maguire & Co., Inc., on March 14, 1934, be carried out.

By answers and cross complaint, W. G. Maguire & Co., Inc., and William Gr. Maguire contend that the contract in question is void for want of adequate consideration; that all of the securities contained in the safety deposit box were always their property, and that other properties were turned over to Parish and Nelson, as trustees, which included Liberty bonds of the value of $220,000, together with 50,000 shares of certain stocks, for which these trustees have failed and refused to account. These two defendants further contend that Parish received these securities under the agreement mentioned, in trust for the benefit of W. Gr. Maguire & Co., Inc., and that Parish had no personal interest therein; that Parish had failed and refused to comply with the terms of the agreement of March 14, 1934, in that he failed to co-operate in opposing certain claims and adverse interests contrary to the provision of the contract, and that Parish had no right to convey any interest in the stock to the plaintiff or to Monroe Percy Bloch. These defendants also insist that the contract upon which plaintiff sues, is void as against public policy, and that it is invalid for want of consideration.

Phillips B. Preston filed a cross-bill in which he alleged that on June 27, 1934, William G-. Maguire and W. G. Maguire & Co., Inc., had entered into an oral agreement with him, wherein and whereby they were to divide evenly between these parties all of the securities which had been converted by and substantially recovered from Parish.

The agreement of March 14, 1934, referred to in the complaint,-is as follows:

“Agreement made between Frank P. Parish and William CK Maguire and W. Gr. Maguire & Co. Inc.
“Mr. Parish is to deliver to Mr. Monroe Percy Bloch, his attorney and George F. Mara, jointly, all of the Kentucky Natural Gas bonds, the subject of the action hereinafter described in number 360 more or less together with all notes of the Missouri Kansas Pipe Line Company for which these bonds are collateral for the following purposes :
“Mr. Bloch and Messrs. Mara and/or Minton are to negotiate a loan, if possible, on pledge of the aforesaid securities and from the proceeds of this loan they are to pay two-thirds thereof to W. G. Maguire & Co. Inc. forthwith, and two-fifths of the remaining one-third of the said proceeds to Frank P. Parish forthwith. The remaining three-fifths of the said one-third of the said proceeds are to be retained by Monroe Percy Bloch and George F. Mara jointly, of which two of the said fifths shall be paid to Frank P. Parish within 45 days of the date hereof and the remaining one-fifth within one hundred days from the date hereof.
“It Is Agreed that Frank P. Parish and William G. Maguire and/or W. G. Maguire & Co. Inc., will make every effort to obtain physical possession of the 40,000 or 50,000 shares of the Missouri Kansas Company stock especially those remaining in the safe deposit box in Canada, and deliver them to Monroe Percy Bloch, John McKim Minton, Jr., and George F. Mara, who are in turn to divide them on the basis of two shares for Maguire and one share for Parish.
“William Gr. Maquire and Frank P. Parish agree to cooperate in opposing Hillman in furtherance of his proposed deal with respect to Missouri Kansas and Panhandle Eastern, Kentucky Natural and Columbia Gas & Electric relations in the interest of the stockholders of the Missouri Kansas Pipe Line Company.
“It Is Further Understood that at the• expiration of the said one hundred day period subject to the payment of the loan if the notes and bonds are still unsold or uncollected they shall be divided on the basis of two-thirds to W. G. Maguire & Co. Inc. and one-third to Frank P. Parish.
“During one hundred days from the date hereof these notes and the Kentucky bonds shall not be sold nor surrendered to any person or institution except for the loan as aforesaid, subject to qualification by the joint consent of Parish and Maguire.
“Upon delivery of the bonds and notes as aforesaid the case of W. G. Maguire & Co. Inc., against Larchmont Company, et al., shall be discontinued and the parties thereto and hereto shall.exchange general releases, the ones with the other.
“Dated, New York, March 14th, 1934.
“Witness:
“Simon Klein Frank P. Parish
“Simon Klein William G. Maguire
W. G. Maguire & Co. Inc.
“Simon Klein By: W. G. Maguire, Prst.”

On the issues made, the cause was referred to a master in chancery to take proofs and report his findings. After hearing a large amount of testimony, the master made a report, together with his findings, and, as stated, recommended that a decree be entered in favor of the plaintiff and Bloch. Exceptions and objections to the report and findings were made, and after a full hearing, the court approved the findings of the master, and in addition, made a finding of the facts, upon which report and findings the court entered its decree.

In the decree the court found that Wagner, complainant, is entitled to 6,000 shares of the Missouri-Kansas Pipe Line stock referred to, that Bloch is entitled to 7,333 of such shares, both as the absolute owners thereof, and that W. Gf. Maguire & Co., Inc., is entitled to receive the remainder of such shares. The court also ordered the payment by defendants of attorneys’ and other fees amounting to $1,800, and the sum of $380.38 to be paid to plaintiff Wagner, as found by the master, on account of advancements and disbursements made by him. The court also found that the costs of the proceeding, including the master’s fees and the cost of administration of a receiver of the stock in dispute, appointed pendente lite, should be borne by the defendants, William Gf. Maguire and W. Gf. Maguire & Co., Inc. This is an appeal by William Gf. Maguire and W. Gf. Maguire & Co., Inc., from the decree referred to. The question to be determined is whether or not the court was in error in awarding the shares of stock to Wagner and Bloch. It is admitted that Parish assigned to Wagner and Bloch all his interest in this stock.

At the time the agreement of March 14, 1934, was entered into between Parish, W. Gf. Maguire & Co., and William Gf. Maguire, there was pending in the Supreme Court of New York, a suit by the Maguires against Parish, referred to in the record as the 1 ‘ Larchmont suit,” for the recovery of $180,000 of the Liberty bonds mentioned, which, it was claimed, had been delivered by the Maguires to Parish in New York in the month of June, 1931, by the terms of which agreement Parish was to lend the proceeds of the bonds to “Mokan,” and for which he was to receive notes of “Mokan” to be secured by Kentucky Natural Gfas Company bonds. Parish had insisted that he was not required to make an accounting, claiming that the bonds had been delivered to him to pay certain obligations of W. Gr. Maguire & Co., Inc., and that if he, Parish, deemed it wise, he might use the balance in the interest of “Mokan” on behalf of Maguire & Company, and that he had made certain expenditures in compliance with this agreement. There was also pending a suit in attachment brought by the Maguires, the Larchmont Company and others, in which the Maguires alleged a conversion by Parish of 45,000 shares of the “Mokan” stock valued at $495,000, and the conversion of Liberty bonds in the amount of $270,000. Parish, on his part, insisted that the Maguires owed him money. Also, Parish claimed that the Maguires had damaged him by publishing libelous matter concerning him.

After the contract referred to and on March 14, 1934, all the matters between Parish and the Maguires were apparently settled, a statement to this effect was delivered to Parish, and a large amount of bonds and stocks were delivered to the attorneys for the Maguires. In fact, the record clearly indicates that prior to the beginning of the suit, apparently, every controversy then existing between the Maguires and Parish, had been settled to the evident advantage of the Maguires, except the delivery of the $40,000 of stock to Parish. Pending this proceeding, this stock was turned over to a receiver, appointed by the court.

The essential facts, as disclosed by the evidence, and as found by the court, are, in substance, as follows:

Parish had been the president of the corporation referred to as “Mokan.” Through another corporation, a pipe line was built from the southwest to the Illinois-Indiana line, the purpose of which was to bring natural gas from what is known as the Panhandle of Texas to the central west. In 1930 certain eastern interests made a raid on the market, which caused a drop in the price of the common stock of “Mokan,” and as a result “Mokan” was in financial difficulties. William G-. Maguire was then employed in an endeavor to raise money for this corporation. Through an agreement made by Maguire & Co., a large amount of money was secured through the National City Company of New York. As commission for this work, Maguire & Co. was given one million dollars in cash and $125,000 in shares of “Mokan” stock by the “Mokan” corporation, and they were also given $450,000 in cash and 10,000 shares of common stock of “Mokan” by the National City Company. After the commission had been paid to Maguire & Co. in the year 1931, Maguire & Co. purchased Liberty bonds, and gave $700,000 of these bonds and 106,000 shares of “Mokan” stock to Parish and Peter B. Nelson, Maguire’s attorney, with instructions that these two were to go to Canada and deposit the Liberty bonds and the stock in a safety deposit vault. It is insisted, and apparently not questioned, that Parish and Nelson thereby became trustees of these properties with Maguire and Maguire & Company as the beneficiaries. Nelson and Parish went to Toronto, Canada, and rented a vault, but Parish retained $220,000 of the Liberty bonds and 66,000 shares of the common stock of “Mokan.” The remainder of the stock, being 40,000 shares of common stock of “Mokan” and the remainder of the Liberty bonds amounting to $480,000 were then placed in the safety deposit box in Toronto, Canada. In May, 1931 with the authorization of Maguire, $300,000 of Liberty bonds were taken out of the box in Canada. Of that sum, $250,000 of the bonds were delivered to Maguire & Co. and $50,000 were used by Parish to pay certain persons named by Maguire. In July, 1931, Parish again went to the box in Toronto and took out $180,000 in Liberty bonds, which act was also authorized by Maguire & Co. The $180,000 in Liberty bonds were used by Maguire & Co. for the purpose of making a loan to “Mokan,” and “Mokan” gave Maguire & Co. a note for $180,000 and secured the same by bonds of the Kentucky Natural Gas Company in double that amount, or $360,000. The “Mokan” note in the amount of $180,000 and the bonds of the Kentucky Natural Gas Company in the sum of $300,000 came into the possession of Parish without the authority of Maguire & Co. There was left in the box at Toronto the 40,000 shares of common stock of “Mokan” in controversy. Thereafter, Maguire ascertained that Parish had invested some of the $220,000 in Liberty bonds that he took out on February 1, 1931, and had purchased a yacht. Parish was thereafter indicted in Chicago by the federal grand-jury. Maguire & Co. commenced the two actions in New York city for the purpose of recovering the securities mentioned, and those actions were pending on March 14, 1934. One of the actions, the Larchmont case, already referred to, was to go to trial on March 15,1934. On March 14,1934, both Maguire and Parish were in the office of Monroe Percy Bloch in New York city in connection with a proceeding relating to the taking of testimony in this case which was to go to trial. Bloch represented Parish. While the parties were in this office, a discussion arose, which finally resulted in the drafting of the agreement dated March 14, 1934, between Frank Parish and William G. Maguire and W. G. Maguire & Company. In their answers filed here, Maguire and Maguire & Company acknowledge the drafting and execution of the agreement. They insist, however, that at the time the agreement was drawn there was another, oral, agreement between the parties, the effect of which was to make Frank Parish a trustee for Maguire and Maguire & Company, and that it was his duty to Maguire and Maguire & Company under the oral agreement and the written agreement combined, to use the securities and the proceeds of securities as a trustee, and to account faithfully to Maguire and Maguire & Company. There is nothing in the record to indicate such an agreement. At the time of the argument on the exceptions to the master’s report, leave was given to Maguire and Maguire & Company to file an amendment to their cross complaint, which amendment set up various claims, among them that the agreement of March 14, 1934, was void because it was contrary to public policy and because there was no consideration. It is contended by Maguire and Maguire & Company that Parish was a trustee not only from February 1, 1931, until March 14, 1934, but that he was also a trustee from that time on. It will be assumed that during the period from February 1, 1931, to March 14, 1934, both Parish and Nelson were trustees and that the beneficiaries were Maguire and Maguire & Company. The question then arises as to why Maguire for himself and for his corporation entered into the written agreement of March 14, 1934, if he did not intend to carry it out. The record indicates that Maguire 'knew all about Parish, and was familiar with and accustomed to business transactions. As stated, the parties met in the office of Bloch in connection with the pretrial proceedings; there were certain attorneys present at that time, Mara and Minton representing Maguire, and Bloch representing Parish. Maguire testified that he knew Parish was under indictment, and that he knew Parish had taken Liberty bonds and stock that belonged to him. He testified that at that time he refused to talk to Parish. Later, when he was informed that he should look at a document relating to the opposition to a settlement of what was termed the Hillman claim, which Parish had drawn, Maguire declined to do so, but subsequently he looked at the document and thereafter the conversation continued. The contract in question was then drawn, changes and interlineations were made in it, and then it was signed by Parish and William Gr. Maguire, individually and for the corporation. It is to be noted that one paragraph of the contract entered into between the parties on March 14, 1934, contains the following provision: “William Gr. Maguire and Frank P. Parish agree to cooperate in opposing Hillman in furtherance of his proposed deal with respect to Missouri Kansas and Panhandle Eastern, Kentucky Natural and Columbia Gas & Electric relations in the interest of the stockholders of the Missouri Kansas Pipe Line Company.”

With regard to this provision, the master and the court found, as the evidence shows, in substance, that in 1930 the Panhandle Eastern Pipe Line Corporation, referred to in the record as “Panhandle,” was incorporated under the laws of the State of Delaware, with Parish as its principal officer and director; that the capital stock of this corporation was owned by “Mokan,” and that “Panhandle” was organized for the purpose of engaging in the distribution of natural gas; that the “Panhandle” commenced the erection of a pipe line for the distribution of natural gas from the State of Texas to the State of Indiana, as herein-before mentioned, and that in the month of June, 1930, competitors of “Panhandle” engaged in the business of furnishing natural gas to the eastern portion of the United States, and, as stated, raided the market of “Mokan” stock and otherwise interfered with the operations of “Panhandle”; that in the month of September, 1930, an agreement was entered into between “Mokan,” the Columbia Oil and the National City Company, the latter being a New York bank, whereby the Columbia Oil agreed to purchase a one-half interest in the common stock of “Panhandle,” and the National City Company undertook to underwrite the completion of the pipe line for the sum of $20,000,000; that in order to carry out the contract entered into on September 17, 1930, above mentioned, between “Mokan” and the Columbia, and in order to raise $6,000,000, “Mokan” conveyed and assigned its entire interest in “Panhandle” to a new corporation, and that in order to procure this $6,000,000, “Mokan” issued $1,060,000 of “Mokan” notes secured by 90 per cent of the Panhandle Corporation stock, together with $1,060,000 of Kentucky Natural Gas first mortgage bonds, and $4,940,000 of “Panhandle” notes secured by $4,945,500 “Panhandle” eastern notes, and that all of these securities were pledged by “Mokan” to one J. H. Hillman of Pittsburgh, Pennsylvania, to secure the payment of $6,000,000. Thereafter, the affairs of “Mokan” became involved, and its business unprofitable, and disputes arose between “Mokan,” the Columbia Oil, Hillman and others concerning “Panhandle.” It was charged that Columbia Oil deliberately wrecked “Mokan.” During the month of March, 1932, the chancery court of Delaware appointed receivers for “Mokan,” and an ancillary receiver was appointed by the United States District Court for the Northern District of Illinois. In 1933 the obligations of “Mokan” to Hillman became due and payable, and a settlement was arranged between the ancillary receiver and Hillman, wherein and whereby Hillman was to become the absolute owner of 75 per cent of the stock of the Panhandle Corporation, which held one-half of the entire capital stock of Panhandle Eastern, and it appears that thereby Hillman and his associates would become the absolute owners of $1,060,000 of Kentucky Natural Gas Company bonds, which were to be exchanged for new stock of the reorganized Kentucky Natural Gas Company, and that as a result of this proposed settlement, the receivers of “Mokan” would be left with only a 25 per cent interest in the stock of the Panhandle Corporation. It was for the purpose of defeating the settlement just referred to, amrl in inducing the Chancery Court of the State of Delaware to reject such settlement, that Parish employed the plaintiff Wagner.

Upon the question of the proposed settlement and the Maguires’ interest therein, the court found from the evidence that:

“Maguire was a large stockholder in Mokan; he was naturally interested in having the Hillman settlement disapproved by the chancellor in Delaware in the hope that the stock would eventually become valuable. He knew that Parish was instrumental in organizing Mokan, that he knew all the details, that he was thoroughly familiar with the situation and he knew that he was able to combat the proposed settlement. At that time the settlement had been approved by the receivers appointed by the Delaware court and it was up before the chancellor for approval.” The record indicates that largely through the efforts of Parish, together with Wagner and Bloch, his attorneys, the Delaware court rejected the proposed settlement, and as a direct result the Maguires’ interest in “Mokan” was increased many times in value.

We have not heretofore reviewed a record in which the master and chancellor had made a more careful analysis of the evidence and a more satisfactory finding than each has done in this case. The court in its detailed finding, after carefully reviewing the evidence and the findings of the master, found and determined that every consideration and promise agreed to be given or performed by Parish had been fully met, and our conclusion is that the findings of each is correct. In Pasedach v. Auw, 364 Ill. 491, the Supreme Court said: “The master in chancery saw the witnesses and heard them testify. It was his province in the first instance to determine the facts. While his finding of facts does not carry the same weight as the verdict of a jury, nor of a chancellor where the witnesses have testified before him, yet the master’s findings are entitled to due weight on review of the cause. (Keuper v. Mette, 239 Ill. 586.) His conclusions as to the facts have been approved by the chancellor. In that situation we are not justified in disturbing the findings unless they are manifestly against the weight of the evidence. North Side Sash and Door Co. v. Hecht, 295 Ill. 515; Klekamp v. Klekamp, 275 id. 98.” The claim that the contract is against public policy, has no merit.

The motion to dismiss the appeal and the plea of release of errors, are denied.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Hebel and Denis E. Sullivan, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Nathan Hoffman, Appellee, v. Joseph Jacobson et al., Appellees, and Liberty National Bank of Chicago, Intervening Petitioner, Appellee. Appeal of William Haber, Appellant.
    Gen. No. 39,835.

      Heard in the third division of this court for the first district at the December term, 1937.
    Opinion filed October 26, 1938.
    Yale & Yale, of Chicago, for appellant; Bernard Yale, of counsel.
    Maurice L. Davis, of Chicago, for appellee Liberty Nat. Bank of Chicago.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

On Eehearing.

In a proceeding brought for the purpose of foreclosing a mortgage trust deed to real estate and after a decree of foreclosure had been entered, a master’s sale of the property was had on December 10, 1936, and William Haber, the highest bidder, became the purchaser at such sale. The master in chancery executed a certificate of sale to Haber, which the master retained in his possession. On March 17, 1937, the Liberty National Bank of Chicago, trustee, and owner of the equity of redemption, redeemed the mortgaged premises from the sale and paid the master the amount of the redemption money. Thereafter, the owner of $3,000 of the bonds, a part of the whole bond issue for which the mortgage being foreclosed was given as security, demanded its portion of the money deposited with the master as redemption money, but the master refused to make the payment without the written authorization of Haber, the purchaser at the sale, which Haber had refused to give. Subsequently, the owner of these bonds filed a petition in the circuit court of Cook county in which it was charged that Haber held title to the certificate of sale, as trustee, for the benefit of all of the bondholders, which the record indicates.is true, and prayed that the court punish Haber for contempt for refusing to authorize the master to turn over the redemption money so deposited with him, to the holders of the bonds, as previously ordered by the court. It appears that Haber, on his own account, as owner of a portion of the bonds, was entitled to $2,382.47 of the total amount of the redemption money. After an order for a rule on Haber to show cause, the court found Haber guilty of contempt and entered a fine of $1,000 against him, to be taken out of his share óf the redemption money.

The court subsequently determined that the distribution of the redemption money might be made without the necessity of any act on Haber’s part, and the distribution was ordered and made, except as to Haber. Therefore, we conclude that the court was in error in imposing the fine of $1,000 on Haber for refusing to act, and in withholding any portion of the redemption money coming to him.

The order imposing the fine of $1,000 is reversed and the cause is remanded with the direction that the trial court order the payment to Haber of the entire amount of his proportion of the redemption money. Additional points raised are without merit, and the other orders appealed from are, therefore, affirmed.

Reversed and remanded with directions.

Hebel and Denis E. Sullivan, JJ., concur.


text:
    Chicago Title and Trust Company, Appellee, v. Morris Shamberg et al. Appeal of Trico Corporation, Appellant.
    Gen. No. 40,004.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Irving L. Block and William Rosenthal, both of Chicago, for appellant.
    J. Kentner Elliott, of Chicago, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

On March 13, 1933, the Chicago Title & Trust Company, as trustee, filed a complaint in the circuit court of Cook county for the foreclosure of the lien of a trust deed to real estate. The trust deed was dated June 25, 1926, and was given to secure an indebtedness of $110,000. Both the trust deed and the evidences of indebtedness were executed by Morris Shamberg and Frieda Shamberg. On January 29, 1937, a decree of sale was entered in the foreclosure proceeding, which found that the defaults alleged in the bill had occurred, and a sale of the real estate was ordered. Among other findings made by the court in its decree, was one to the effect that on May 5, 1936, Morris Shamberg and Frieda Shamberg had entered into a lease of the premises involved with one Homer D. Triplett for a term commencing June 1, 1936, and ending May 31, 1941, both inclusive, unless the lease should be sooner terminated; that this lease was on May 15, 1936, assigned by the lessee to the Trico Corporation, its heirs, successors, administrators and assigns, with the consent of Morris Shamberg and Frieda Shamberg by the Real Estate Management Corporation, their agents; that pursuant to this lease, the sum of $1,050 was deposited with the Real Estate Management Corporation by the lessee, and that out of the sum so paid, the Real Estate Management Corporation acquired certain refrigerators, and the court further found that it was desirable that the purchaser at the sale of the premises involved, should acquire these refrigerators with the property in lieu of the $1,050 deposited, and should take the refrigerators subject to the terms of the lease regarding this deposit, and should expressly assume liability for the deposit.

It is to be noted that the lease referred to was entered into prior to the decree of sale, and the record shows that it was neither submitted to nor approved by the court. Also, that prior to the decree and on July 15, 1936, a receiver was appointed for the property. On December 17, 1936, following the appointment of the receiver, certain persons, owners of bonds for which the trust deed in question was given as security, petitioned the court to cancel the lease to the Trico Corporation, referred to in the decree, and on July 1, 1937, the court entered an order canceling this lease, and ordered the receiver to enter into a new lease with the Trico Corporation upon the same rental as provided in the original lease, for a term beginning July 1, 1937, and to continue only until the further order of the court. No appeal was taken from this order. Thereafter, the Trico Corporation attorned, and paid rent to the receiver as shown by the report of the master filed on December 13, 1937, which contains the following:

“Receipts [By the receiver]
“Trico Corporation (tenant) Sept. $415; Oct. $415; Nov. $415 — Total $1245.
‘ ‘ Disbursements
“Nov. 30, 1937. Trico Corp., as per decree, return of deposit. $1050.00.”

Attached to the receiver’s report just referred to, is the following:

“Received of George F. Leibrandt, Receiver in case of Chicago Title & Trust Co. as Trustee, v. Morris Shamberg, et al., Circuit Court Case No. B-265425, the sum of One Thousand Fifty Dollars ($1,050.00), said sum having been heretofore deposited as security on a lease dated May 5, 1936, for the premises known as 944-46 Montrose Ave., Chicago, Illinois, from Morris Shamberg, et al., to Homer D. Triplett, and thereafter assigned to Trico Corporation. That by the terms of the decree heretofore entered in the aforesaid cause said sum of $1,050.00 became the obligation of one Burchard B. Hayes, who has made deposit of said sum with George F. Leibrandt.
Trico Corporation by David Cohl.”

On October 28, 1937, a petition was filed by the holder of the fee simple title to the premises in question, in which it is recited, in substance, that the Trico Corporation, is the assignee of the lease dated May 5, 1936, hereinbefore referred to, and that the lease was assigned to the Trico Corporation on May 15, 1936, as above set forth; that on July 1, 1937, the court directed George F. Leibrandt, receiver of the property, to enter into a lease with the Trico Corporation; that the purchaser of the property at the master’s sale had deposited $1,050 in consideration of the conveyance to him of the refrigerators; that the net rents for the period of redemption extending from December 1, 1937, to May 25, 1938, had been deposited with the Chicago Title & Trust Company, and that the Trico Corporation is entitled to receive from the receiver the sum of $1,050, provided it should have first complied with the terms of the lease entered into between Leibrandt and the Trico Corporation on July 1, 1937. The petition prayed that the court order the receiver to deliver possession of the premises to the petitioner. On this petition, the court entered an order terminating the receivership and terminating the lease between the receiver and the Trico Corporation dated July 1, 1937. The court further ordered that the Trico Corporation surrender possession of the premises, together with all goods, chattels, furniture and fixtures contained therein, secured by the trust deed in question, and sold in pursuance to the foreclosure sale, to the purchaser at the foreclosure sale. It is from this order that the appeal is being prosecuted.

The errors assigned by the Trico Corporation are as follows:

“1. The Court erred in its order of November 30, 1937, insofar as the order directed the Trico Corporation to deliver possession to the equity holder.

“2. The order of November 30, 1937, should have granted the relief requested in the lessee’s cross-petition.

“3. The Court should have found that the order of July 1, 1937, cancelled the lease only as between the receiver and the Trico Corporation, and not as between the owner of the equity and the lessee.

“4. The Court should have found that by reason of the redemption, the lease was continued in full force and effect.

“5. The Court should have ordered the lessee to remain in possession under its lease.”

Plaintiff insists that the order of July 1, 1937, by which the court ordered the original lease canceled, was a final order, was not appealed from, and therefore, no question can be raised to it now. In its original brief the Trico Corporation insists that the order canceling the original bill was not a final order, and was subject to modification, alteration or vacation on the final hearing of the cause. In its reply brief, the Trico Corporation makes the following statement: “We concede that the order of July 1, 1937, was a final order and was an appealable one.” The Trico Corporation now insists that by reason of the redemption from the sale, the original lease had “again” become effective, even though the court ordered it canceled. ■ Plaintiff contends that even if this were true, that inasmuch as the Trico Corporation acquiesced in the cancellation of this original lease, and thereafter attorned and paid rent under the new lease, it cannot now claim any rights under the original lease, and cites various cases in support of its contention. As to this, in its reply brief, the Trico Corporation states that “We have no quarrel with the law expressed . . . , which is basic.”

We are of the opinion that the appeal is frivolous and without merit. The order appealed from is, therefore, affirmed.

Order affirmed.

Hebbtj and Denis E, Sullivan, JJ., concur.


text:
    People of the State of Illinois, Defendant in Error, v. William J. Elmore, Plaintiff in Error.
    Gen. No. 40,169.
    Heard in the third division of this court for the first district at the October term, 1938.
    Opinion filed October 26, 1938.
    Barratt O’Hara, of Chicago, for plaintiff in error; George H. O’Brien, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Blair L. Varnes and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

In the county court of Cook county defendant was charged with violating section 24 of “An Act to revise the law in relation to the practice of the treatment of human ailments for the better protection of the public health and to prescribe penalties for the violation hereof” (Ill. State Bar Stats. 1935, ch. 91, sec. 24 [Jones Ill. Stats. Ann. 79.25]). The section referred to is as follows:

“If any person shall hold himself out to the public as being engaged in the diagnosis or treatment of ailments of human beings; or shall suggest, recommend or prescribe any form of treatment for the palliation, relief or cure of any physical or mental ailment of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever; or shall diagnosticate or attempt to diagnosticate, operate upon, profess to heal, prescribe for, or otherwise treat any ailment, or supposed ailment, of another; or shall maintain an office for examination or treatment of persons afflicted, or alleged or supposed to be afflicted, by any ailment; or shall attach the title Doctor, Physician, Surgeon, M. D., or any other word or abbreviation to his name, indicative that he is engaged in the treatment of human ailments as a business; and shall not then possess in full force and virtue a valid license issued by the authority of the State to practice the treatment of human ailments in any manner, he shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by confinement in the county jail not more than one year, or by both such fine and imprisonment, in the discretion of the court.” Upon a trial being had and after being found guilty by a jury, defendant was sentenced to 7 days imprisonment in jail, and ordered to pay a fine of $100 and costs.

Charlotte Hermes, an investigator for the department of registration and education of the State of Illinois, testified to the effect that on June 1, 1937, she visited the premises at 6334 Roosevelt road in Oak Park, Illinois, and that she did so because a complaint had been made to the department, and that she was directed to go there by her superior officer; that upon arriving at the place mentioned, she saw a gold lettered sign on the door of the premises as follows: “Dr. W. J. Elmore, Naprapath, Physical Therapy, Ultra Violet Therapeutics. Hours 2 to 5 p. m. and 7 to 8 p. m.” In addition, in the upstairs window of the building was a neon sign as follows: “Dr. W. J. Elmore, Naprapath.” The witness then identified the defendant Elmore as the person with whom she had a conversation at the time and place mentioned. She stated that she informed the defendant that her name was Mrs. Ralph Sigmund, and that she had been referred to him by her sister-in-law, who lived on 59th street. The witness also stated that she told the defendant she was suffering from severe headaches, pains in the back of her eyes and pains in the arms and shoulders, and that she had heard of his treatment; that the defendant then stated that the witness would have to come back later for a treatment, and that he proceeded to show her his office and a therapy machine, explained how it worked and the results that came from it; that he stated to the witness that a Naprapath examined the spine and the location of sore spots; that she told the doctor that certain organs were causing trouble, and that he said she would need a course of treatments which would cost $12; that if she took six treatments, the diagnosis would be free, but that if she took no further treatments, the diagnosis would be $5.00. The witness testified that she called again on the following June 2nd, and that the defendant then examined her back and neck by pressing on the vertebra; that he informed the witness that the pains in her shoulders and arms were caused by pinched nerves, and explained that a chiropractor would consider it “subluxation”; that the defendant applied pressure to the witness’s back and to her neck and shoulders, and applied other treatments; that certain treatments were given to her in connection with a machine to which there were rubber pads connected ; that the defendant put one pad on the witness’s back and the other to her right side, and that she experienced considerable heat for about 20 minutes ; that he manipulated her neck and shoulders, and that she then removed her shoes and he gave her feet a similar treatment. For this treatment, the witness testified that she paid him $5, and that he gave her a receipt signed “Dr. W. J. Elmore.” Photographs of the premises referred to were received in evidence, showing the signs thereon, as testified to by the witness Hermes. None of the testimony of the witness was denied by the defendant. On the contrary, it is shown that defendant in effect, admitted his guilt to the witness and told her that he would cease his practice.

We are of the opinion that the verdict of the jury is fully supported by the evidence. The judgment of the county court of Cook county is affirmed.

Judgment affirmed.

Hebel, J., concurs.

Denis E. Sullivan, J., specially concurring: While I concur in the decision reached in the foregoing opinion as-I believe the entire record shows the guilt of the defendant, yet I cannot approve the method employed by the investigator for the State who falsely informed defendant as to her (said investigator’s) physical condition, thereby inducing the defendant to commit the offense charged.


author: Mr. Justice Hebel

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Max Freedman et al., Appellants.
    Gen. No. 39,925.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Thomas Marshall, of Chicago, for appellants.
    Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendants from an order entered by the court on August 3, 1937, finding the defendants guilty of misconduct and misbehavior as officers of the county court of Cook county and of contempt of court while acting as judges and clerks of election at a primary held on April 14, 1936, in the 47th precinct, of the 20th ward in Chicago, county of Cook and State of Illinois, and sentencing Max Freedman and Jack Werner for contempt of court to one year in the county jail, and Henry Lieberman to six months in the county jail.

A verified petition was filed by the chief clerk of the board of election commissioners of the city of Chicago, from which it appears that on April 14, 1936, a primary election was held in the city of Chicago, county of Cook and State of Illinois, for the nomination by the chief political parties of candidates for office to be voted for on the first Tuesday after the first Monday in November of said year, and for other purposes as prescribed by law.

It also appears that certain misconduct and misbehavior therein alleged of the said defendants as such judges and clerks of said primary election, constituted contempt of court, and it further appears from the allegations of the petition that the defendants, while serving and acting as judges and clerks of said election in said precinct, did knowingly, fraudulently and unlawfully make a false canvass, tally, proclamation and return of the votes cast in said precinct, and also unlawfully permitted persons to vote more than once, and further permitted persons not qualified to vote and persons to vote whose names had been erased as registered voters at said primary.

It further appears from the petition that the defendants permitted persons not registered to vote, recorded the names of persons who did not vote, gave assistance to voters not needing assistance, permitted one judge of election to go into the booth with a voter, permitted liquor in the polling place, and also allowed persons to handle ballots other than the defendants, and permitted persons to alter ballots, and thereby were guilty of corrupt and fraudulent conduct as judges of election in said precinct.

By the petition the court was requested to enter an order and rule commanding the defendants to appear in court at the time designated in said order.

Thereafter, on April 19, 1937, the defendants filed a petition and affidavit for a change of venue, in which they recited they feared they would not receive a fair trial in the said court because the judge thereof was prejudiced against them, which knowledge came to them April 15,1937. The motion for a change of venue was denied. A further motion of the defendants to strike the petition and affidavit was considered by the court and denied.

It appears from the evidence that on April 14, 1936, about six o’clock a. m. the only precinct official who appeared for duty was Elsa Nye, a judge. As voters came in to vote she solicited Max Freedman and Lieberman and Werner to act as judges of election, and she swore them in as judges on the morning in question.

There is evidence in the record of witnesses who appeared and cast their ballots, assisted by officials of the election board, and from the testimony of these witnesses one of the judges went into the booth with them for the purpose of aiding them in casting their ballots.

George Factor and James Gold were called as witnesses. They testified they attended the primary election on the day in question as watchers, and during the course of their presence at this polling place they made a memorandum of what took place, and used the memorandum in making a report of the occurrences, which was delivered to a Mr. McQueeny, who had hired them for the purpose of making a note of the occurrences at the polling place while they were present as watchers; that they were required to rewrite their reports in order that they might receive the compensation promised them for the day’s work. At the close of their evidence the court, as to one of the witnesses, commented that they were unable to get anywhere with the witness and the court thought he was shielding someone and had merely written a fictitious report to get paid for it. At the conclusion of the hearing the attorney, Mr. Cashen, who represented the board of election commissioners as special attorney, made this statement:

“At this time I withdraw the report of the watchers that I asked be admitted in evidence. I might state I am not offering or relying on any evidence no matter how slight of the two watchers that were called here. (Factor and Gold) It would only really be on the recount as made, in the Election Commissioners.”

There is evidence in the record that upon an examination of the poll books and registers it appears that ballots were east more than once by or in the names of the following persons:

Name Address Poll Booh Lme No.
David Sorella 718 W. 14th St. 431 both books
David Sorrella 714 W. 14th St. 382 both books
Loretta Johnson 832 W. 14th St. 378 both books
Loretta Johnson 832 W. 14th St. 411 both books
Mrs. Mary Cunningham 1410 S. Halsted St. 107 both books
Mrs. Mary Cunningham 1410 S. Halsted St. 167 both books
Mrs. Esther Lieberman 1340 S. Newberry St. 220 both books
Mrs. Esther Lieberman 1340 S. Newberry St. 56 both books
Fletcher Bullock 711 W. 14th St. 367 both books
Fletcher Bullock 711 W. 14th St. 433 both books
Dan Bolden 832 W. 14th St. 388 both books
Dan Bolden 832 W. 14th St. 361 both books
Clara Jackson 1415 Newberry 386 both books
Chara Jackson 1415 Newberry 418 both books
Bay Smith 1411 S. Halsted St. 432 both books
Bay Smith 1411 S. Halsted St, 372
Della Harris 832 W. 14th St. 31 both books
Della Harris 832 W. 14th St. 374 both books
Della Harris ' 832 W. 14th St. 423 both books

Ballots were cast in the name of the following persons who were not registered voters:

Name Address Poll Booh Line No.
Sam Rubin 1338 Union Ave. 191 both books
Alex Carter 1415 Newberry344 both books
Milton Jones 832 W. 14th St. 35 both books

Further there is evidence that persons were voted in the names of the following persons whose names had been erased from the official registers:

Name Address Poll Booh Une No.
Abe Kramer 720 Barber St. 206 both books
Anna Smith 711 Liberty St. 311 both books
Ethel Snuggs 719 Liberty St. 290 both books

There was offered in evidence a summary of a recount of the ballots cast in the 47th precinct of the 20th ward at the primary election held on April 14, 1936, from which it appears the voters casting a Democratic ballot numbered 274, and those casting a Republican ballot, 163, making the total number of ballots cast 437. Forty-two of the Democratic ballots cast were not initialed, but were counted by the judges of election on the night of April 14, 1936. It also appears that the judge who served on that particular day was one Freedman, who was a candidate as a delegate to the Republican National Convention, and that Lieberman had served previously as a Republican judge of election and testified he did not know he had been removed as a judge, and the third judge, Werner, made application to be appointed as clerk of election, which application was filled out by his brother-in-law, and rejected.

It is clear from the record that the ballots cast show a discrepancy in that the ballots were not properly tabulated, and the court was fully justified in reaching the conclusion that fraud was committed by the judges at the election.

The only objections offered by the defendants to the admission of the resume of the ballots which were recounted in the precinct in which the defendants officiated as judges of election were: (1) The ballots were not admissible because the statute requires they be destroyed; (2) that the resume and the ballots were documentary evidence and not oral evidence; and (3) that no election contest was pending. The objections were overruled and the resume of the recount of the ballots in evidence shows that 42 Democratic ballots cast were not initialed. The Primary Election Law, ch. 46, par. 415, sec. 51, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 43.434], provides, in part:

“ . . . No primary ballot, without the endorsement of the judge’s initials thereon, shall be counted.

“Any judge wilfully omitting to endorse his initials on a primary ballot, as required by this Act, or any person not authorized so to do who initials a primary ballot knowing that he is not so authorized, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not exceeding $200 for each offense or such judge may be prosecuted for contempt as an officer of the County Court. Any person who is convicted of said offense shall be disfranchised for a term of not more than five years, and forfeit his right to hold any elective or appointive office in this State for a term of not more than five years, in the discretion of the court.” '

From this provision it is evident the court in this contempt proceeding had jurisdiction to pass upon the question of whether the defendants violated the provision of the Primary Election Law.

It appears from the resume of the recount that there was a discrepancy between the ballots cast for the Democratic candidates and the votes actually received by the several candidates. The total loss of votes tallied for the various candidates on the Democratic ticket ranged from 1 to 143, and it was from the tabulation of the recount that the court considered this and other evidence and determined that the defendants were guilty as charged and fixed the punishment accordingly.

Several questions have been called to our attention upon which the courts have passed, one of which is the denial of the defendants’ motion for a change of venue. This question has been considered by the courts contrary to the views expressed by these defendants for the reason that the courts have construed the provision of the Change of Venue Act as not applying to cases in which the question of contempt such as we have before us, is involved. People ex rel. Rusch v. Kotwas, 363 Ill. 336; People ex rel. Rusch v. Savaiano, 293 Ill. App. 515; People ex rel. Rusch v. Williams, 292 Ill. App. 228; People ex rel. Rusch v. Sulli, 296 Ill. App. 639 (Abst.). And again the point has been raised in this case and passed upon whether oral evidence is the only evidence that will be considered by the court in an action of this character in determining the violation charged against the defendants, who were acting as judges and clerks of election.

The appealed cases in which the court has considered this question contrary to the contention of the defendants are: People ex rel. Rusch v. Savaiano, 293 Ill. App. 515, and People ex rel. Rusch v. Sulli, 296 Ill. App. 639 (Abst.).

Other questions are argued, but after considering the record in this case we believe the court was fully justified in finding the defendants guilty and fixing the penalty as stated in this opinion. For the reason that no error appears in the record the judgment is affirmed.

Judgment affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    Royal Neighbors of America, Plaintiff, v. Chicago Title and Trust Company et al., Defendants. Royal Neighbors of America and Chicago Title and Trust Company, Appellants, v. Harold R. Schradzki et al., Appellees.
    Gen. No. 40,029.

      Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago, for certain appellant; David Levinson, Roger S. Bloch, and Abraham Fishman, all of Chicago, of counsel.
    Benjamin S. Adamowski, of Chicago, for certain other appellant; James V. Sallemi, of Chicago, of counsel.
    Harold R. Schradzke, Edwin W. Sims, Franklin J. Stransky, Arthur W. Sprague, Earle G. Kallen and Joseph Robinson, pro se; Samuel A. Litman and David F. Matchett, Jr., both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the Royal Neighbors of America, as a beneficiary, and the Chicago Title and Trust Company, as trustee, in twenty-five liquidation trusts, from a decree entered on November 30, 1937, ordering the Chicago Title and Trust Company, as trustee, to pay out of the trust estates to Harold R. Schradzki, Sims & Stransky, Arthur W. Sprague, Earle G. Fallen and Joseph Robinson, attorneys for certain other beneficiaries, $7,500 for their services as attorneys in this case.

The bill of complaint was filed on March 13, 1937, by the Royal Neighbors of America, alleging in substance as follows:

It was one of the beneficiaries under thirty-four certain liquidation trusts and a majority beneficiary in thirty-three of the trusts, and Chicago Title and Trust Company was the trustee in each instance; that the Royal Neighbors of America desired to readjust its interests and the interests of the other beneficiaries and to that end had formulated and submitted a “plan of readjustment” which, by an exchange of securities, would leave the Royal Neighbors of America as the sole owner of twenty-five of the trust estates and leave the other beneficiaries as the sole owners of the nine remaining trust estates; that the allocation of the trusts was based on independent appraisals of the values of the trust estates made by the Chicago real estate board, Ross & Browne and Paul Steinbrecher, realtors; that as an inducement to the other beneficiaries, Royal Neighbors of America had offered in its proposed plan of readjustment to surrender $44,785.65 more in value of securities than it was to receive; that the plan of readjustment had been submitted to and approved by the trust managers of the various trusts, and copies of the plan, together with audits and schedules, had been mailed to all known beneficiaries for their assent or dissent, and the holders of less than 4% per cent in amount of the outstanding beneficial units in all the trusts had dissented to the plan; that although the provisions of the trust agreements required the trustee to adopt the plan unless 50 per cent of the beneficiaries dissented in writing, nevertheless the trustee failed and refused to adopt the plan of readjustment or to execute the contract for the exchange therein provided.

The plaintiff made Chicago Title and Trust Company, as the trustee, defendant, also certain beneficiaries of each trust, as representatives of various classes, and prayed for a construction of the trust agreements and for a determination that the plan of readjustment was fair and reasonable and the consummation thereof advantageous and to the best interests of all parties, and for a decree directing the trustee to execute the contracts provided for the plan.

On April 17,1937, the Chicago Title and Trust Company, as trustee under each of the trusts and as representative of all the beneficiaries, filed an answer to the complaint, denying the right of the plaintiff to the relief prayed for. Similar answers were filed by certain beneficiaries of the various trusts, named as defendants. The court on its own motion appointed William Feldman as attorney for all unnamed beneficiaries and he filed a similar answer. Thereafter, Harold R. Schradzki, Sims & Stransky, Arthur W. Sprague, Earle G. Kallen and Joseph Robinson, attorneys of record for certain other beneficiary-defendants, filed motions to strike the complaint for certain defendants and filed answers for others. All the motions to strike raised only one question, namely, whether the Chicago Title and Trust Company, as trustee under the various trusts, had the power to adopt, consent to or consummate the plan of readjustment proposed by the Royal Neighbors of America— which was one of the very questions raised in the answer of the Chicago Title and Trust Company, trustee.

On April 21, 1937, an order was entered consolidating an independent complaint,'filed February 8, 1937, by Earle G-. Kallen, as attorney for Martin J. True-man, with the case of Royal Neighbors of America. The Trueman complaint prayed to enjoin the trustee from adopting the plan, although the trustee had already indicated its refusal to adopt it.

On July 16, 1937, an order was entered sustaining the motions to strike and dismissing the complaint for want of equity.

The court found that it has jurisdiction of the parties and subject matter and that petitioners, Harold R. Schradzki, Arthur W. Sprague, Sims & Stransky, Earle Gr. Kallen, Joseph Robinson and William Feldman, appeared herein as attorneys for certain of the defendants who are the owners of certificates of beneficial interest in various of the trust estates held by the Chicago Title and Trust,Company, as trustee, under the liquidation trusts (setting forth the numbers of the various trusts); that said petitioners contributed materially to the preservation of said twenty-five trust estates by prompt, proper and efficient action, preserved and kept from waste and despoilation said trust estates and prevented an illegal diversion of the trust funds and properties; that the prompt and efficient procedure of Messrs.' Schradzki, Sprague and Sims & Stransky in presenting motions to strike the complaint, to the end that the court dismissed the complaint, not only contributed materially to the preservation and protection of the assets held- by the trustee under said liquidation trusts, and prevented the illegal and unauthorized diversion of the funds and properties of the liquidation trusts, but in addition, the direct method of attacking the complaint by motion to strike rather than by answer saved large sums amounting to thousands of dollars of costs which would have been wasted had the cause been permitted to be referred to a master; that these costs would have included the expenses and charges of expert witnesses to testify to the value of each parcel of real estate held by said twenty-five trusts; that the examination of said appraisers would have consumed a vast amount of time and lengthy hearings before a master; that there would be charges for audits; that there would have been court reporter’s charges, charges for publication of notices, master’s fees and a series of charges for services from attorneys appearing in said proceedings ; that while this court is mindful that not all of the costs and expenses would of necessity have been borne by the trust estates, yet this court is of the opinion and so-finds that the motions to strike, aside from the preservation and protection of the trust estates, saved to them at least $25,000 in costs, and expenses, and probably considerably more; that from the complaint and certain verified petitions for fees and from the answers thereto the court finds that the total number of certificates issued under the twenty-five trusts mentioned in the complaint is 83,242, representing an original investment by the certificate holders of $8,324,200; that of this total number of certificates the minority holders own 19,819 shares representing an original investment of approximately $1,981,900; that the remaining shares constituting the majority interest are owned by the plaintiff, Boyal Neighbors of America; that talcing the allegations of the complaint as true (and the defendants represented by petitioners acknowledged the fact), the value of the minority interests in said 25 trust properties as of April 1, 1936, was $1,130,882.11, that the holders of certificates of beneficial interest in the trusts were similarly situated, and had a common interest in the properties comprising the trust estates which the plan of adjustment contemplated would be dissolved; that the petitioners’ services redounded to the benefit of the trustee under such liquidation trusts and all of said holders of certificates of beneficial interest and all of the defendants; that the substantial charges and expenses which would have been incurred by the taking of proofs and a trial of this cause were avoided and the trust estates as well as the interests of the defendants therein were exonerated from such charges as the result of the motions to strike; that the proceedings had and taken by petitioners, Schradzki, Sprague, Sims and Stransky, by virtue of the motions to strike and their arguments were of great benefit to the certificate holders involved in these proceedings, and particularly to the minority interests by keeping from despoilation and waste the trust estates and each of them; that the complaint for an injunction originally filed in the circuit court of Cook county Case No. 37C-1332, by attorney Earle Gr. Kallen, on behalf of his client, later joined in by Alfred A. Harmet represented by attorney Joseph Robinson, was of great value and benefit to the holders of beneficial interests in said twenty-five trusts and of particular value to the holders of minority beneficial interests; that the work done and results accomplished by such counsel redounded to the interest of all holders of beneficial interests in each and all of said twenty-five trusts; that this court appointed William Feldman in this proceeding to represent the minority holders of certificates of interest in the twenty-five trusts not expressly named in the class designation as parties defendant, and said William Feldman well and truly performed his duties in the protection of the interests of his clients and was of value in protecting and preserving the estates before the court; that the services of all counsel herein named, even though the means and methods taken by divers counsel in the mechanics of procedure differed, contributed toward the end of the dismissal of the complaint herein, and though the methods of attack were different, defeated the illegal design of Royal Neighbors of America, as prayed in the complaint; that aside from William Feldman, counsel appointed by the court, the court finds that only one fee should be allowed and awarded for all of the acts of divers counsel which contributed to the dismissal of said complaint that if one lawyer or one firm or group of lawyers had, by appropriate action, attained the results which here prevailed, namely, the dismissal of the complaint, without burdening the estate with costs of a master’s reference, and the preservation- of the estates, a fair, usual and customary _fee for such services would be $7,500 to such one lawyer or single group or firm of lawyers, aside from the services of William Feldman; that the sum of $7,500 is a fair, reasonable, usual and customary fee < for the services of all the petitioners for fees, with the exception of William Feldman, considering the time devoted to the various services by petitioners, the nature of the problems raised, the character, legal experience and ability of all petitioners and attorneys for the plaintiff, the large and substantial value of the property interest affected by the plan of adjustment, the results accomplished and the accompanying benefit to the holders of certificates of beneficial interest in said twenty-five liquidation trusts; and a fee of $500 is a fair, reasonable, usual and customary fee for the services performed by the said William Feldman; and that the fees herein awarded and allotted be prorated to and against the twenty-five several trusts, in accordance with the appraised value of the properties comprising said trust estates, as computed from the average of the three appraisals alleged in the complaint herein.

And then the order sets out the title of the several trusts, together with the fee allowed Feldman and the other petitioners in each of the several cases, and the court finally reached the conclusion, and it is adjudged and decreed, that Feldman is to receive the sum of $500 as attorney’s fees for services rendered by him as the appointee of the court; that Harold R. Schradzki, Arthur W. Sprague, Sims & Stransky, Earle G-. Kallen and Joseph Robinson are to receive the sum of $7,500 as and for attorneys’ fees for the services rendered by them in this cause for the benefit of the holders of beneficial interest in each of the several twenty-five trust estates mentioned in the complaint herein, and on December 6, 1937, a notice of appeal from this final order was taken.

The plaintiffs in this connection contend that the general rule is firmly established in Illinois that in the absence of a valid statute or contract providing therefor, solicitors’ fees cannot be allowed by decree, except in cases involving the construction of wills, and cite the case of Wilson v. Clayburgh, 215 Ill. 506, wherein the complainant prayed for the appointment of a suecessor in trust. A decree was entered allowing solicitors’ fees of $300 to the complainant’s solicitors. The court in passing upon this question said:

‘ ‘ The only question involved upon this appeal is, can a court of chancery, in the exercise of its equitable jurisdiction, allow and tax as cost the solicitor’s fee of the solicitor for a beneficiary under a trust created by a will, who brings a suit to have the resignation of the trustee named in the will accepted and a new trustee appointed in his place? That question, we think, must be answered in the negative. It has been repeatedly held in this State that nothing can be allowed and taxed as costs by the clerk or the court but items of cost designated by the statute to be so allowed and taxed. (Constant v. Matteson, 22 Ill. 546; Strawn v. Strawn, 46 id. 412; Eimer v. Eimer, 47 id. 373; Conwell v. McCowan, 53 id. 363; Campbell v. Campbell, 63 id. 502; Roby v. Chicago Title and Trust Co., 194 id. 228; Rieker v. City of Danville, 204 id. 191.) The only exception to this rule in this State is in cases brought by trustees for the construction of wills, where a will is so ambiguous as to make it necessary to go into a court of chancery to obtain a construction thereof, in which class of cases the costs of the litigation must be borne by the estate. Woman’s Union Missionary Society of America v. Mead, 131 Ill. 338; Ingraham v. Ingraham, 169 id. 432; Arnold v. Alden, 173 id. 229.

“It is urged with much earnestness that the same reason obtains in this case for the allowance of a solicitor’s fee to complainant’s solicitor to be taxed as costs and paid out of the estate, that exists in the case of a bill filed for the construction of a will which is ambiguous. Such has not been the holding of the courts, (In re Holden, 126 N. Y. 589), and this court could not so hold without legislating upon the subject. The question here presented has been before this court in partition suits, (Strawn v. Strawn, supra; Eimer v. Eimer, supra; Campbell v. Campbell, supra;) where the litigation often may be as beneficial to the defendant as to the complainant; bnt the uniform holding has been, in those cases, that the court cannot allow and tax a solicitor’s fee in the absence of a statute authorizing it so to do, and the same conclusion has been reached in foreclosure cases. Conwell v. McGowan, supra; Roby v. Chicago Title and Trust Co., supra.

Our attention is called also to the case of Aloe v. Lowe, 230 Ill. App. 538, wherein certiorari was denied by the Supreme Court, and wherein Wilson v. Clayburgh, supra, is cited with approval. See also Rasch v. Rasch, 278 Ill. 261; Farwell v. Illinois Merchants Trust Co., 264 Ill. App. 49.

The defendants reply to this contention is that the numerous cases cited clearly indicate that in cases involving the construction of wills, particularly testamentary trusts, the attorney’s fees and expenses of all parties, both plaintiff and defendant, may be allowed as a charge against the estate or fund, and point to the reason for this rule and state that if the will is so ambiguous as to require judicial construction, the testator should bear the expense of such litigation, and that a trust fund should bear the expense of its administration, and a decree construing the trust obtained in a proceeding in which all interested parties have appeared is necessary for its proper administration* and cite in support of their contention the case of City of St. Louis v. McAllister, 302 Mo. 152, 257 S. W. 425.

The complainant, Royal Neighbors of America, as beneficiary in thirty-four certain liquidation trusts and a majority beneficiary in thirty-three of the trusts, was desirous of adjusting the interest of the several parties in these trusts, and filed a bill for the purpose of adjusting the several ownerships and by that method bring about an order and decree which would make it the sole owner of the interests that it had and which were described in the bill of complaint, and, of course, it made all the parties defendant that were necessary for that purpose. Upon a motion made by several of the parties to strike this petition and after the court had considered the motions which were pending before it, the bill of complaint filed by the Eoyal Neighbors of America was dismissed. No appeal of any kind having been taken, the attorneys who represented the interests of several of the defendants who were beneficiary owners in several of the trusts, filed their petition for the allowance of attorneys’ fees in appearing for the beneficiaries who objected to the plan proposed by the complainant.

As we have indicated in this opinion, in order that attorneys’ fees may be allowed by the court in pending litigation, it is necessary that there be an agreement for the payment of attorneys’ fees, except where the trust is created by will and there is controversy as to the construction of the provisions of the will. However, that is not the question in this case. The sole question as we view the record is whether under the facts as we have outlined them and as they appear in this opinion, the beneficiaries who appear by attorneys are entitled to attorneys ’ fees for their services in the litigation.

The defendants’ theory is, as we understand the record, that it is well settled that attorneys representing one having a common interest with others in a fund, who maintain the necessary litigation to preserve and protect that fund, are entitled in equity to an allowance of attorneys’ fees from the fund itself. They cite in support of this theory the case of Trustees of Internal Improvement Fund v. Greenough, 105 U. S. 527, in which action the bondholders successfully maintained an action to prevent the trustees under the bond issue, and others, from diverting the security of the bondholders to purposes other than those provided in the trust agreement securing their bonds, and quote what the court said upon that question as follows:

“It is a general principle that a trust estate must bear the expenses of its administration. It is also established by sufficient authority, that where one of many parties having a common interest in a trust fund, at his own expense takes proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement, either out of the fund itself, or by proportional contribution from those who accept the benefit of his efforts. . . .

“Of course, it is well understood that costs as between solicitor and client include all reasonable expenses and counsel fees, and are not like costs as between party and party, confined to the taxed costs allowed by the fee-bill.”

The defendants call our attention to the opinion of this court in the case of First Nat. Bank v. LaSalle-Wacker Bldg. Corp., 280 Ill. App. 188. In that case there was a foreclosure suit and a plan of reorganization was submitted to the court for approval by a bondholders ’ committee holding a large amount of the bonds. Certain of the holders intervened on the ground that the interest of the bondholders was not properly protected in the plan of reorganization, and secured a modification thereof, which the court below found to be beneficial to the bondholders and allowed $15,000 to the attorneys representing the interveners to be paid out of the property being foreclosed. The court said:

“We think the rule is firmly established that a court of equity or a court in the exercise of equitable jurisdiction will, in its discretion, order an allowance of solicitor’s fees to a party who, at his own expense, has maintained a successful suit for the preservation, protection or increase of the common fund or of common property, or who has created at his own expense or brought into court, a fund in which others may share with. him. Trustees of Internal Improvement Fund v. Greenough, 105 U. S. 527; Central Railroad & Banking Co. of Georgia v. Pettus, 113 U. S. 116; Hobbs v. McLean, 117 U. S. 567; Harrison v. Perea, 168 U. S. 311; Kadish v. Chicago Co-operative Brewing Ass’n, 35 Ill. App. 411; Stahl v. Stahl, 166 Ill. App. 236; Abend v. Endowment Fund Commission, 174 Ill. 96; Hempstead v. Meadville Theological School, 286 Pa. 493 (49 A. L. R. 1145).”

In the instant case the finding of the courts in allowing solicitors’ fees is based largely upon the question of whether the funds are being wasted by the plaintiff, and therefore in the litigation necessary to preserve the estate, the courts have held that the acting party is entitled to a solicitor’s fee. Now, let us examine what occurred in this particular litigation. The plaintiff, as we have indicated, is a beneficiary under thirty-four certain liquidation trusts and a majority beneficiary in thirty-three of the trusts, and so far as the facts would indicate there was no waste of the estate. The purpose of the litigation was to consolidate the interest of the several beneficiaries in the trusts, as outlined in the petition filed by the plaintiff. In other words, the plaintiff wished to be the sole beneficiary of a certain number of trusts and the defendants who were beneficiaries, were to be the sole beneficiaries in the trusts that may have been transferred to them by order of court, and in carrying out this plan, the plaintiff proposed in a settlement of the difference in value of the several trusts to surrender to the other beneficiaries $44,785.65 more in value of securities than it was to receive, and as it appears from the petition of the plaintiff that the plan of readjustment had been submitted and approved by the trust managers of the various trusts, and copies of the plan, together with audits and schedules, had been mailed to all known beneficiaries for their assent or dissent, and the holders of less than 4% per cent in amount of the outstanding beneficial units in all the trusts had dissented to the plan. So from the allegations which were admitted by the motion of these defendants to strike, the plaintiff was not attempting to waste or had wasted any of the properties in which these defendant beneficiaries were interested. The fact that the court dismissed the plaintiff’s bill on motion of these defendants, does not mean that there was waste or the destruction of property such as would justify the court in fixing the amount of damages. This was but a lawsuit between the parties plaintiff and the defendants, and there was nothing which would indicate that the properties were dissipated or destroyed.

All of these parties still have the same interest in the same trusts as they had before the litigation was instituted. It does not appear from what is before the court that the action of the plaintiff was frivolous or oppressive, or that there was a wrongful attempt to relitigate matters already decided. On the contrary, the action was for the purpose of making the several interests certain as to ownership of the several interests involved. The plaintiff by this action sought to bring about a certain result, which, from the admission of the pleadings, was to make certain the interests of the several parties, and it certainly was not frivolous in the sense that the action was to annoy the defendant beneficiaries by being obliged to relitigate.

As we have previously stated, this was a litigation in which the parties had a right to present their matters to the court, and litigation should not be made expensive by taxing an honest litigant in his effort to preserve his rights. With the contention of the defendants that there was no contract entered into providing for the payment of solicitors’ fees, and that payment may be recovered where there is a fund involved in the litigation which might be termed a common fund, we cannot agree.

Another question is involved, and that is, was the allowance of $500 to William Feldman, the attorney appointed by the court to represent all the unnamed beneficiaries, subject to criticism. What we have said with reference to the allowance of attorneys’ fees will apply equally to the allowance of $500 to Mr. Feldman for services rendered. But it does not appear that such allowance was appealed from, or that any question was raised affecting the right of Feldman to retain the money for the services which no doubt were rendered. In view of the fact that the question is not properly before us, there is nothing the court can do but consider that the allowance has been waived by the parties.

For the reasons stated in this opinion the decree directing the trustee to pay out of the trust estate to Harold B. Schradzki, Sims & Stransky, Arthur W. Sprague, Earle G-. Hallen and Joseph Bobinson, a fee of $7,500 for services rendered as attorneys in the above entitled cause is reversed.

Decree reversed.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    Anna Brosius, Appellee, v. Carl O. Madsen et al. Appeal of Earl L. Weinstock and Adeline M. Weinstock, Appellants.
    Gen. No. 40,093.

      Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed October 26, 1938.
    Rehearing denied November 9, 1938.

      Hurford & Feigenholtz, of Chicago, for appellants; Harold L. Feigenholtz and Sidney Rubin, of Chicago, of counsel.
    William M. Brady, of Chicago, and J. V. Schaffenegger, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This in an appeal by Earl L. Weinstock and Adeline M. Weinstock from a decree of foreclosure entered on May 12, 1937, sustaining objections to the master’s report and finding these defendants to be personally liable for the amount of any deficiency which may be shown after sale, and from the decree entered on December 29, 1937, overruling objections to the judicial sale and entering a personal deficiency judgment against the named defendants.

On September 18, 1934, the plaintiff, Anna Brosius, exhibited her complaint to foreclose the trust deed herein involved. It appears from the allegations of the complaint that the defendants appealing did after the execution of the trust deed in question, convey the real estate involved to Carl 0. Madsen and Tina Mad-sen; that on December 16, 1929, an extension agreement was made' and executed by Carl 0. and Tina Madsen, by the terms of which the maturity of the indebtedness was extended, and that they did assume and agree to pay the debt; that subsequently, on December 16, 1932, the maturity of the indebtedness was again extended by an agreement made and executed by Carl 0. and Tina Madsen, and that they again assumed and agreed to pay the indebtedness, and the plaintiff in the foreclosure proceeding prays that a personal deficiency be decreed against the defendant or defendants personally liable therefor.

The trust deed, the subject of this foreclosure proceeding, conveys the real estate involved subject to a condition of defeasance from the mortgagors, Earl L. Weinstock and Adeline M. Weinstock, to Max K. Meyer, as trustee, and provides: ‘ ‘ That the grantors covenant and agreed to pay said indebtedness and the interest thereon as herein and in said note provided, or according to any agreement extending time of payment. ’ ’

The defendants, Earl and Adeline Weinstock, thereafter exhibited their appearance and answer in which they allege two extensions of -the indebtedness without their knowledge or consent and the assumption of the debt by their grantees, Carl O. and Tina Madsen; that Carl 0. and Tina Madsen filed their joint answer, and the cause was referred to a master in chancery of the circuit court to consider such evidence as might be presented in support of the complaint and the answer thereto. After a hearing of the evidence submitted to the master, he prepared and filed his report in which he found that the defendants, Earl L. Weinstock and Adeline M. Weinstock, conveyed their fee simple title to the real estate to Carl 0. and Tina Madsen, who did procure two extensions of the maturity of the indebtedness, and, by agreement, had assumed and agreed to pay the mortgage debt.

The master further found the parties stipulated that Carl 0. Madsen if present would testify these defendants had no knowledge of the extensions, and further found in his report that by virtue of the conveyance by these defendants to the Madsens, and the execution of the extensions without the knowledge or consent of these defendants and the assumption of the debt by the Madsens, these defendants, Earl L. Weinstock and Adeline M. Weinstock, have been released from liability to the plaintiff.

Objections were filed by the plaintiff to the master’s report, which were overruled by the master and allowed to stand as exceptions before the court. Upon due consideration, the court sustained the exceptions filed to the master’s report, and a decree of foreclosure and sale was entered on May 12, 1937, decreeing these defendants, Earl L. Weinstock and Adeline M. Weinstock, to be personally liable for any deficiency which may be shown to exist after sale. A sale was had pursuant to said decree on November 2,1937, resulting in a deficiency in the aggregate sum of $3,553.58.

Objections filed by these defendants to the sale and report of sale were, by order of court of December 29, 1937, overruled. A decree was entered approving the master’s report of sale and distribution, and the court entered a deficiency decree against the defendants Earl L. Weinstock and Adeline M. Weinstock, and also Carl O. and Tina Madsen, and it is from this decree and the decree of foreclosure and sale that the defendants Earl L. Weinstock and Adeline M. Weinstock, have prosecuted this appeal.

The contention of the defendants is that the relationship of the parties to this cause is analogous to an express suretyship agreement and the agreements extending the time of payment of the mortgage indebtedness by the mortgagee with the mortgagors’ grantees without their knowledge or consent discharge the mortgagors from their liability to the mortgagee.

The liability assumed by the mortgagors when they signed the trust deed depends largely on the words used in the instrument. At the time the mortgagors executed the trust deed, as we have already pointed out, it provided among other provisions relating to the transaction that — “The grantors covenant and agree to pay said indebtedness and the interest thereon as herein and in said note provided, or according to any agreement extending time of payment.”

The words used in the agreement did not restrict the extension of the mortgage loan, and by such restriction relieve the defendants, Earl L. Weinstock and Adeline M. Weinstock as the makers of the notes when they conveyed the title to the real estate, which was security, as evidenced by the trust deed executed by the makers at the time the deed was delivered.

This very question has been passed upon by courts of appeal, and one of the cases that has been considered by the Appellate Court is that of Kent v. Rhomberg, 288 Ill. App. 328, which involved a trust deed, containing an agreement on the part of the mortgagor, in which the phraseology is somewhat similar to the language of the trust deed involved in this case, and in passing upon the questions called to the attention of the Appellate Court, we said:

“We are of the opinion that the reasoning in the case from which we have just quoted is applicable to the cause here on appeal. There is no language which limits or qualifies the extension of time of payment in the trust deed in question, but the words used are very broad when it appears from the trust deed that the time of payment of the indebtedness may be extended according to any agreement which might be entered into for that purpose. The language not alone applies to an extension agreement that might have been had between the plaintiff and the defendants, but applies equally well to the extension agreement entered into between the plaintiff and Williams, the successor to title of the defendants by their deed.”

From an examination of the opinion of the court, it is apparent that the language of the trust deed does not limit the number of extensions or the time when an extension agreement might be had between the plaintiff in this case and the successor in title to the defendants.

In the case of Continental Nat. Bank & Trust Co. v. Reynolds, 286 Ill. App. 290, the court considered the necessary construction to be given the words as used in the trust deed. In the case here on appeal it was stated that — 11 The grantors covenant and agree to pay-said indebtedness and the interest thereon as herein and in said note provided, or according to any agreement extending time of payment.” In discussing the construction of the word ‘ ‘ any, ’ ’ this court in the above cited case said:

“ . . . We have carefully examined the authorities cited by plaintiff holding in effect that the use of the word ‘any’ in the phrase ‘any agreement,’ etc., was in its usual broad distributive sense, indicating lack of limitation and as the equivalent of, and synonymous with, the words ‘each’ or ‘every.’ In Bonart v. Robito, 141 La. 970 (76 So. 166), the court said that they could not conceive of any reasonable theory on which to hold that the consent, as expressed in the note sued on, authorized the payee to grant the maker only one extension of the final payment, however long, and did not authorize two extensions, however short; that to maintain such a doctrine would lead to the anomalous conclusion that the indorser would not have been released if the payee had granted to the maker of the note, without notice to the indorser, one extension of the time of payment for one year, but that the indorser would have been released by the granting of two extensions for one month, or one week, or one day each. The court there interpreted the indorser’s consent that time of payment might be extended without notice to mean that the payee and the maker of the note could agree to extend the payment from time to time without notice to the indorser and without releasing the indorser from liability, unless and until at any time after maturity the indorser saw1 fit to pay the note and become immediately subrogated to the right of action against the maker. Plaintiff cites Webster’s International Dictionary; Bouvier’s Law Dictionary, and numerous cases in Illinois and other States supporting the argument that the word ‘any’ as employed in connection with the note herein is used in its usual sense to indicate the equivalent of ‘ each’ or ‘ every.’ (People v. VanCleave, 187 Ill. 125, 134; People v. Fidelity & Casualty Co., 153 Ill. 25, 36; West Chicago Park Com’rs v. McMullen, 134 Ill. 170, 179; State Nat. Bank of Ft. Worth v. Vickery (Tex. Com. App.), 206 S. W. 841). After a careful consideration of these authorities we have reached the conclusion that ‘any extension’ as here used should not receive the narrow interpretation sought to be placed on the language thus employed, but should rather be interpreted in the ordinary sense of ‘each’ and ‘every’ extension, without limited numbers. If the parties had intended to limit the right of the holder of the note to grant time they could easily have expressed their intention by using other language, such as ‘an extension,’ or ‘one extension,’ or have placed a time limit on the authority of the holder to extend. ’ ’

Applying the construction given the word “any” as used in connection with the agreement signed by the makers of the trust deed, as well as the notes, the defendants agreed they would pay the indebtedness and the interest thereon according to any agreement entered into by the holders of title extending the time of payment. So we are of the opinion that the court did not err in entering the deficiency appearing in the record against the defendants here on appeal.

While it is true the Madsens as successors in title to these defendants assumed payment of the mortgage, still by their assumption, failure to pay did not release Earl L. Weinstock and Adeline M. Weinstock from liability.

The defendants here on appeal also contend that the court erred in overruling objections of the defendants to the sale of the property in question. From what we have before us it appears the real estate was sold for $1,500 and that the complainant alleged the value of the property did not exceed $2,000. In the objections to the sale filed by the defendants there aré no figures from which the court can determine the actual value of the property, and whether, upon a further sale, a greater sum could be realized.

The case of Straus v. Anderson, 366 Ill. 426, cited by the defendants, does not afford any guidance, inasmuch as it presented a situation where a bondholders’ committee had obtained control of the fee and was interested in eliminating nondepositing bondholders instead of having the property bring as high a price as possible to satisfy the debt. We there said: “When some of the creditors organize for the purpose of acquiring the ownership of the property to the exclusion of those not participating in the re-organization, rather than for presently obtaining the debt, or some part of it, due them in money, the situation changes. It is obvious that the interest of the bondholders’ committee here was to buy the property at as low a price as possible and likewise, equally apparent, that the interest of the non-depositing bondholders was to have the property bring the highest possible price at the sale.”

The case of Levy v. Broadway-Carmen Bldg. Corp., 366 Ill. 279, also called to our attention by the defendants, involved no question of nondepositing bondholders, but the lower court refused to approve a bid of $50,000 on property that had been purchased for $135,000. The Supreme Court disapproved the action of the chancellor and ordered the sale confirmed.

It is true the chancellor upon questions of like character has a broad discretion in passing upon the acts of the master and approving or disapproving his acts with reference to sales under decrees, and such discretion unless abused will not be interfered with by a court of review. Moeller v. Miller, 315 Ill. 454; Roberts v. Goodin, 288 Ill. 561.

The record is silent as to what the property was reasonably worth, so that we are without means to consider any discrepancy between the actual value of the property and the amount of the bid. The failure of the defendants to introduce evidence of this fact deprives us of the consideration of such facts as might be helpful in determining what the property was reasonably worth and whether the bid was such that the court would consider the facts and determine that the property had been sold at a fair price.

The court having considered the questions in the matter regarded as important and having found that the court did not erroneously approve this sale, either as to the value of the property or as to the rights of the parties in the foreclosure proceeding, the decree is affirmed.

Decree affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.