Major v. Collins

• Decision Date: 31 October 1885
• Citation: 17 Bradw. 239,17 Ill.App. 239
• Parties: JOHN T. MAJOR ET AL.v.JOHN COLLINS ET AL.
• Court: United States Appellate Court of Illinois

17 Ill.App. 239

17 Bradw. 239

JOHN T. MAJOR ET AL.

v.JOHN COLLINS ET AL.

Appellate Court of Illinois, First District.

October Term, 1885.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding. Opinion filed December 4, 1885.

This was a petition, brought by John Collins against John T. Major and others, for a mechanic's lien, for materials furnished and work done by Collins, under a written agreement between him and Major, in the erection of five buildings on five different lots belonging to Major. The petition was afterward amended by making Edward A. Hartwell a defendant, and Hartwell thereupon filed his answer and cross-petition, claiming a lien by virtue of an assignment from Collins to him of the moneys due and to become due on the contract. This answer and cross-petition were afterward amended by striking out Hartwell's claim for a lien on the premises, and inserting a claim for an equitable lien on the moneys to be recovered by Collins under the contract.

On the hearing, on pleadings and proofs, a decree was entered establishing a lien in favor of Collins for $3,085, and declaring an equitable lien in favor of Hartwell upon said money to the extent of the entire amount thereof, and ordering a sale of the premises described in the petition, and a distribution of the proceeds in certain proportions between Hartwell and the owners of certain prior incumbrances on the lots. That decree being brought to this court by writ of error, was reversed for error in ordering a sale of all of the lots in solido: Major v. Collins, 11 Bradwell, 658. The facts at that time appearing in the record are sufficiently stated in the report of the decision, and need not be repeated here.

It appears by the present record that several months before said writ of error was sued out, the master advertised said lots for sale under the decree, and after offering them for sale separately, without receiving any bids, offered the five lots for sale together, and sold them to Hartwell for $4,283.36, and executed to him the usual certificate of purchase, the sum realized being sufficient, after paying the costs and expenses of sale, to satisfy said lien, and leave $974.86 to apply on said incumbrances.

The master's report was duly filed, showing the sale, and that the master, out of the proceeds, had paid the costs and the expenses of the sale, and also the amount of the mechanic's lien, leaving the sum of $974.86 in his hands subject to the order of the court; and appended to the report was a receipt dated the day of the sale, signed by Hartwell's solicitor, acknowledging the receipt from the master of the amount, principal and interest, due said Hartwell under the decree. An order was thereupon entered approving the sale and distribution.

One John Zimmer then filed a petition claiming as assignee of the first incumbrance on the lots, and praying for an order on the master to pay him, out of the moneys remaining in his hands, the amount of said incumbrance, and an order was afterward entered on said petition, directing the master to pay said Zimmer, out of said money, the sum of $645.32, the amount then due on said incumbrance.

The cause having been re-instated in the court below, after the reversal of the decree an order was entered requiring Collins and Hartwell to file a supplemental petition, and such petition was thereupon filed, setting forth all the proceedings aforesaid, down to and including the reversal of the decree and the re-instatement of the cause below, and praying that a mechanic's lien be granted as prayed in the original and cross-petitions; that Hartwell be allowed the costs paid by him, and be subrogated to the rights of Zimmer, so far as relates to the incumbrance held by him; that the master refund to Hartwell the surplus of $329.54 in his hands; that Hartwell have leave to surrender into court for cancellation his master's certificate of purchase, and that the same be held for naught, and the same as if never issued; and for other, further and different relief, as the nature of the case might require.

Answers were filed, and the cause was again heard on pleadings and proofs. The court, against the objection of the defendants, heard and considered the evidence taken before the master prior to the former hearing, including the evidence then heard in relation to the value of the lots and buildings. The defendants then offered to prove the relative value of the lots and buildings at the date of the hearing, but such evidence was excluded by the court.

By the decree, the court found that Collins was entitled to a lien amounting in all, including interest, to the sum of $3,590, to be apportioned equally between said five lots and buildings--that is to say, $718 on each, and that Hartwell had an equitable lien on said moneys to the full amount thereof; that Collins had a first lien, for the use of Hartwell, on each of said buildings, and a third lien on each of said lots, for said sum of $718, and the proportion of each of the costs of suit. The decree ordered that Hartwell surrender into court, for cancellation, the master's certificate of purchase, and that said certificate be forever held and esteemed for naught and of no effect or value whatever; that the master pay to Hartwell the sum of $329.52 remaining in his hands out...