Clawson v. Munson

• Decision Date: 30 September 1870
• Citation: 1870 WL 6437,55 Ill. 394
• Parties: WILLIAM CLAWSON et al.v.MERRITT MUNSON, use, etc.
• Court: Illinois Supreme Court

55 Ill. 394

1870 WL 6437 (Ill.)

WILLIAM CLAWSON et al.

v.MERRITT MUNSON, use, etc.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of Henry county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.

The opinion states the case.

Messrs. BUCKLES & WELLS and Messrs. CRAWFORD & BECK, for the appellants.

Messrs. SHAW & CRAWFORD, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

On the ninth day of July, 1866, William Clawson was indebted to Merritt Munson in the sum of $3000, for which he executed to him his three promissory notes. On the same day, William Clawson and his wife, Jane, conveyed certain real estate to Munson, by way of mortgage, to secure the payment of the said notes.

In January, 1870, Merritt Munson, who sues for the use of Andrew Crawford, sued out a writ of scire facias against the appellants to foreclose the mortgage. The cause was submitted to a jury, who returned a verdict for the appellee, on which the court entered judgment, and ordered a special execution for the sale of the mortgaged premises. To reverse that judgment this appeal is now prosecuted.

The mortgage contained a clause, in which it was provided, that in case the sum of money secured thereby was not paid according to the tenor and effect of the notes, the mortgagor would “pay all attorney's fees for the collection of said sum of money.” The error assigned is, that the court erred in permitting evidence to be offered on the trial, on the part of the appellee, to show what would be a reasonable attorney's fee for the collection of the sum of money secured by the mortgage, and in entering judgment on the verdict, which found, in addition to the amount due on the mortgage for principal and interest, the sum of $110 as such reasonable attorney's fee.

Two objections are made to the rulings of the circuit court.

First, that attorney's fees are not recoverable in a proceeding by scire facias to foreclose a mortgage, for the reason that the amount thereof does not rest in computation, but must be ascertained by evidence aliunde.

Second, that no attorney's fees in this instance were due at the commencement of the suit.

This proceeding was commenced under the twenty-third section of chapter forty-seven, R. S. 1845. That section provides, that the “court may proceed to give judgment, with costs, for such sum as may be due by said mortgage, or appear to be due by the pleadings, or after the defense, if any be made.”

This language would seem to be broad enough in its terms to include any money demand due on the mortgage, as exchange, or attorney's fees, when expressly provided for, although the amount does not rest wholly in computation, and although resort must be had to evidence aliunde to ascertain the exact amount of the same.

The case of McCumber et al. v. Gilman, 13 Ill. 542, was a proceeding by scire facias to foreclose a mortgage given to secure a note for $600, payable in “internal improvement scrip.” The court held, in that case, that the action would not lie. The court say: “It is very apparent that the statutory remedy of foreclosure by scire facias applies only to mortgages made to secure the payment of money. It does not extend to mortgages made to secure the delivery of specific articles of property, or the performance of other acts. The note was not for the payment of money.”

The reason assigned for the decision in that case is, that if the note was not paid when due, the party could only recover the value of the “internal improvement scrip.” The mortgage, therefore, was not to secure a purely money demand, but was to secure the delivery of a specific article of property, namely, “internal improvement scrip.”

It seems to us that the case now before us can be...