Nix v. Thackaberry

• Decision Date: 16 June 1909
• Citation: 88 N.E. 811,240 Ill. 352
• Parties: NIX v. THACKABERRY.
• Court: Illinois Supreme Court

240 Ill. 352

88 N.E. 811

NIX

v.THACKABERRY.

Supreme Court of Illinois.

June 16, 1909.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; W. M. McEwen, Judge.

Action by Elizabeth L. Nix against Milton L. Thackaberry. Decree for complainant, affirmed by the Appellate Court, and defendant appeals. Affirmed.William B. Moak, for appellant.

H. J. Rosenberg (Max M. Grossman, of counsel), for appellee.

PER CURIAM.

This is a bill filed in the superior court of Cook county May 22, 1906, to foreclose a trust deed in the nature of a mortgage, dated January 13, 1904, given by appellant to secure his principal note for $40,000, payable in three years after that date, with interest at 6 per cent. per annum, payable semiannually, until maturity, and with interest after maturity until paid at the highest rate of interest it was then lawful to be contracted for, said interest being evidenced by six interest notes of $1,200 each, of even date, payable respectively, at the end of each successive six months after date, with the same provisions as to the rate of interest after maturity as the principal note-all of which notes were payable to the order of the maker and by him indorsed in blank. The cause was referred to a master in chancery to take and report the proofs and his findings. Appellant filed a large number of exceptions to the master's report, which on a hearing the chancellor overruled, and entered a decree in the usual form used in foreclosure proceedings finding $40,407.91, including solicitors' fees, due complainant and directing a sale of the premises. On an appeal to the Appellate Court for the First District, a judgment was entered affirming the decree. This appeal has been taken from that judgment of the Appellate Court.

It is necessary first to dispose of the suggestion of appellee that, under sections 119, 120, and 122 of the present practice act (Hurd's Rev. St. 1898, c. 110), this court cannot review controverted questions of fact in chancery cases where the Appellate Court has by its judgment affirmed the findings of the trial court. Those sections, so far as they affect this question, are substantially the same as the provisions of the former practice act with one exception, which will be referred to hereafter. We have repeatedly held that, under the former practice act, this court was not bound by the finding of facts by the Appellate Court in chancery cases. Joliet & Chicago Railroad Co. v. Healy, 94 Ill. 416;Moore v. Tierney, 100 Ill. 207;Miller v. Cook, 135 Ill. 190, 25 N. E. 756,10 L. R. A. 292;Cheney v. Roodhouse, 135 Ill. 257, 25 N. E. 1019;City of Belleville v. Citizens' Horse Railway Co., 152 Ill. 171, 38 N. E. 584,26 L. R. A. 681;Henry v. Caruthers, 196 Ill. 136, 63 N. E. 629. The one change in the present practice act passed since these decisions were announced which bears on this question is the addition of the italicized words to that part of section 120 of said act (Hurd's Rev. St. 1908, p. 1638, c. 110), which now reads: ‘If any final determination of any cause or proceeding whatever except in chancery shall be made by the Appellate Court, as the result wholly or in part of the finding of the facts, concerning the matter in controversy, * * * the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy,’ etc. The words ‘except in chancery,’ so added, do not in any way weaken the authority of the decisions just quoted, but, on the contrary, would tend to re-enforce the rulings laid down therein. Under the present as under the former practice act the finding of facts in chancery cases by the Appellate Court will not be conclusive here, but this court will determine the controverted questions of fact from the evidence in the record.

Appellant first contends that appellee (complainant below) was not the owner of the notes secured by said trust deed. The proof shows that the appellee is an old lady of about 71 years, and that her husband, Charles H. Nix, did most of her business for her. It is claimed by appellant that the trust deed and notes are really owned by Charles H. Nix. We are disposed to hold that the record shows that appellee was the legal holder of these notes, and that the proceedings were properly brought in her name. But even if the husband were the real owner, as contended by appellant, this record does not show how appellant was in any way injured as to making any defense that could be made against the husband. Appellant claimed that he was not in default in any of the payments on any of the notes at the time the bill was filed in this cause. Counsel has not pointed out any evidence that was refused admission which tended to show in any way that he was not in default. He introduced considerable proof to show that he had made a settlement with the husband as to the interest notes that were unpaid at the time these proceedings were instituted in the superior court. The master found that the proof did not indicate that any such settlement had been made, or that the appellant had made any showing that he had an offset for attorney's fees that could fairly be made against these notes, even if they were owned by the husband. This finding of the master was approved by the trial court and the judgment of the Appellate Court. The Appellate Court in its opinion states: ‘The proofs do not show that Charles H. Nix was indebted to appellant in any sum whatever.’ We concur in that statement.

Appellant further contends that he made a deed conveying two or three lots covered by said trust deed to one William Eckhart, who was to pay $1,000 therefor, and that he gave said deed to Charles H. Nix to deliver to said Eckhart on the payment of said sum, and that this $1,000 was not credited on the indebtedness. As we understand appellant's claim, it is that this $1,000 should have been credited before the bill was filed. The evidence fails to show that said deed was ever delivered to Eckhart, or that the purchase money was ever paid to appellee or her husband. The decree, however, provided that ‘nothing in this decree contained shall in any way prejudice any right which Milton L. Thackaberry might have against Charles H. Nix, or any one else, by reason of the execution by said Thackaberry of a deed in which William Eckhart is grantee,’ to said lots. It follows, therefore, that appellant is fully protected by the decree as to this $1,000.

Certain lots included in the trust deed were condemned by the city of Chicago for school purposes, the value thereof being ascertained by jury trial, and the money was paid to the county treasurer and by him paid to the appellee and credited on the principal on said principal note. The trustee thereupon released said lots from the lien of said trust deed. Appellant contends that because, under the provisions of the trust deed, the trustee was not authorized to release the said lots on the payment of any less sum than $12,000, therefore appellee should be charged with $12,000 and the latter amount should be credited on the indebtedness, although the amount of the condemnation money, less taxes, was only $7,688.79. With this we do not agree. The effect of the judgment was to transfer the lien of the trust deed from the land to the fund awarded. A formal release by the trustee was unnecessary. Calumet River Railway Co. v. Brown, 136 Ill. 322, 26 N. E. 501,12 L. R. A. 84;Stopp v. Wilt, 177 Ill. 620, 52 N. E. 1028. The further contention is apparently made by counsel for appellant that this condemnation money should have been credited on the interest and not all on the principal, and that, if this had been done, there would have been no default at the time the bill was filed. This contention is without force, as the bill was filed May 22, 1906, and the money was not paid over to appellee by the county treasurer until June 2, 1906.

Appellant further contends that the decree made an improper finding as to the amount of interest due on both the principal and interest notes. The trust deed gave the holder of the notes secured by the trust deed the right to declare all of the notes due on failure to pay the notes. Appellant made default in the payment of certain interest notes. Appellee declared all the notes due and filed her bill May 22, 1906. The condemnation money heretofore referred to was paid complainant June 2, 1906, and indorsed on the principal note as of May 26, 1906, leaving the balance then due on said note $32,311.21. Up to January 13, 1906, the interest was included in the coupon notes maturing on or...