Armstrong v. Douglas Park Bldg. Ass'n

• Decision Date: 24 October 1898
• Parties: ARMSTRONG v. DOUGLAS PARK BLDG. ASS'N.
• Court: Illinois Supreme Court

176 Ill. 298

52 N.E. 886

ARMSTRONG

v.DOUGLAS PARK BLDG. ASS'N.¹

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, First district.

Bill by the Douglas Park Building Association against Mary G. Armstrong. From a judgment of the appellate court (60 Ill. App. 318) affirming a decree for complainant, defendant appeals. Reversed.

John G. Manahan and Charles H. Roberts, for appellant.

Lyman M. Paine, for appellee.

PHILLIPS, J.

On April 29, 1893, the appellant gave her bond and mortgage to the appellee, the mortgage reciting that it is conditioned on the payment of $2,300 borrowed on 23 shares of stock, which is to be paid in monthly installments, from May 1, 1893, of principal $11.50 and interest $15.34, and to continue until said shares shall attain the value of $100 each. The mortgage is also conditioned as follows: ‘It is expressly agreed that, * * * for six months' default in the payment of any of the sums of money payable by the terms of said bond, the abovementioned stock may be forfeited, and said declared due, and this mortgage foreclosed.’ It also provides for the payment of fines for nonpayment of monthly installments when due; for taxes, assessments, insurance, and an attorney's fee of $50 in case of foreclosure. No principal or interest having been paid, on November 29, 1893, the board of directors of appellee declared the loan due, and directed a foreclosure of the mortgage. On January 4, 1894, the bill to foreclose the mortgage was filed in the usual form, averring a failure to pay fines assessed and any installment of principal or interest; a declaration of the maturity of the debt; and reciting that the by-laws of appellee provided for a fine of 5 cents on each share for default in the payment of either the subscription or interest installment as it falls due, which fines were assessed, whereby the mortgagor was indebted on the bond and mortgage $2,300, for interest $138.06, for fines $18.40,-making, in the aggregate, $2,456.46. The bill also alleges that appellee had to pay $150 for taxes and insurance, and was entitled to $50 attorney's fee. The bill also alleges the insolvency of defendant, that the property was scant security, and prayed for the appointment of a receiver, etc. The defendant was personally served, and, for want of answer, was defaulted, on January 17, 1894. The cause was referred to the master, who reported, finding the board of directors had declared the debt due; that there was due of principal $2,300, interest $138.06, and fines $20.70; that the amount advanced for taxes and assessments was $85.92, and a reasonable solicitor's fee was $50,-making a total of $2,594.68; for which amount a decree was recommended, which was entered on January 27, 1894, providing for a sale in five days, in default of payment. The decree did not provide for the appointment of a receiver. On February 24, 1894, a sale of the premises, which were the home of the defendant, was made, under the decree, to the complainant, for $2,475. After the sale, the master, on March 10, 1894, reported a deficiency, including all costs, of $205.58, for which a supplemental decree was entered, and an order made, without notice to defendant, appointing a receiver to take possession of the property, collect rents, and apply the same to keeping the premises insured and in repair, and to pay taxes and...