North Presbyterian Church of Chicago v. Jevne

• Decision Date: 30 April 1863
• Parties: NORTH PRESBYTERIAN CHURCH OF CHICAGOv.OTTO JEVNE, PETER ALMINI AND CHARLES DAEGLING.
• Court: Illinois Supreme Court

32 Ill. 214

1863 WL 3176 (Ill.)

83 Am.Dec. 261

NORTH PRESBYTERIAN CHURCH OF CHICAGO

v.OTTO JEVNE, PETER ALMINI AND CHARLES DAEGLING.

Supreme Court of Illinois.

April Term, 1863.

ERROR to Superior Court of Chicago.

This cause arose on the petitions of Jevne and Almini, and of Daegling, consolidated in the court below, for the enforcement of a mechanics' lien against the church edifice of the plaintiff in error, and the two lots whereon it stood. The mortgage upon said lots to Geo. F. Lee, who was made a party defendant, was given prior to the making of petitioners' contracts, and prior to the building of said church. It was insisted by defendants that the money paid for labor and materials, ought, in the apportionment of the proceeds of the sale of the lots and improvements, to be added to the value of the bare lots in behalf of said mortgagee; and the refusal of the court to decree the sale of said lots and improvements and so apportion the proceeds, and the decreeing of a sale of the church edifice without the lots, were assigned as error.

Scates, McAllister and Jewett, for plaintiff in error.

Hervey, Anthony and Galt, for defendants in error.

WALKER, J.

The decree in this case ordered the sale of the church edifice, without the lots upon which it stood, which is assigned for error. The third section of the mechanics' lien law,¹ provides that the person holding such a lien may, upon petition to the circuit court, obtain an order for the sale of the property upon which the improve ments have been made. The fifth section of the act provides the manner in which all parties in interest shall be brought before the court. The twelfth section requires the court, on the trial of the cause, to ascertain the amount due each creditor, and to direct the application of the proceeds of the sale to each, in proportion to their several amounts.

The fourteenth section declares that if any part of the premises can be separated and sold without damage to the whole, and if its value should be sufficient to satisfy the decree, the court may order a sale of that part. It will be seen that the fourteenth section only authorizes the property to be divided when it can be done without injury. The division ordered by this decree would necessarily involve many inconveniences, which could not but produce injury. If the building was sold independent of the ground upon which it stood, so long as it remained, it could not be used by the purchaser without trespassing upon the owner of the lots. He might require its removal, and upon a failure to do so, have it done himself, and if it could be removed, it would be attended with such expense as to greatly depress its value. To tear it down would destroy its value, except the worth of the materials, and to permit it to remain, would entirely deprive the owner of the soil of all means of enjoying the ground it occupies. These considerations would, no doubt, produce a large depression in the price on such a sale, and to such an extent as to render it improper.

The fifteenth section of the act provides that persons having liens not due may become parties to the suit, and have them allowed, subject to a deduction of interest from the date of the judgment until they become due and payable. Under this provision, the mortgagee was properly made a party to the proceeding. And under this section the court was required to ascertain the amount of his lien, and decree its payment, although it was not due, and then have ordered the sale of the whole property. The fourteenth section only...