Rodman v. Quick

• Decision Date: 24 October 1904
• Citation: 211 Ill. 546,71 N.E. 1087
• Parties: RODMAN v. QUICK et al. CENTRAL SAFETY DEPOSIT CO. v. RODMAN et al.
• Court: Illinois Supreme Court

211 Ill. 546

71 N.E. 1087

RODMAN

v.QUICK et al.

CENTRAL SAFETY DEPOSIT CO.

v.RODMAN et al.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Circuit Court, Lake County; C. H. Donnelly, Judge.

Bill by Martha A. Rodman against Martha A. Quick and others, in which the Central Safety Deposit Company filed a cross-bill praying similar relief to that asked by complainant Rodman. From a judgment in favor of plaintiff and cross-complainant for less than the relief demanded, plaintiff appeals. Reversed.George W. Brown, for appellant.

W. H. Ketcham and C. H. Thompson, for appellees.

This is a bill filed by appellant, Martha A. Rodman, the legal owner and holder of a note secured by trust deed, to redeem from a prior mortgage made to Martha A. Quick, both upon the same farm located in Lake county, and which prior mortgage was foreclosed without appellant being made a party to the proceeding. The Central Safety Deposit Company was also made a party defendant to the bill, and filed a cross-bill, in which it prayed to redeem from the Quick mortgage. Other parties were made defendants to the original bill, but those, except appellee Quick and the Central Safety Deposit Company, defaulted.

From the allegations of the bill it appears that one James C. Cozzens, on May 2, 1892, was the owner of the premises, and was indebted to Martha A. Quick in the sum of $7,500, and executed to her his three notes, each for the sum of $2,500, payable in one, two, and three years, respectively, with interest at the rate of 6 per cent., and secured the same by a trust deed upon said premises. Said Cozzens was also indebted to one Fred W. Cornish in the sum of $5,000, and on the same day, but subsequent to the making and delivery of the Quick mortgage, he made two notes for $2,500 each, due in one and two years, respectively, with interest at 6 per cent. payable to the order of said Cornish, and to secure the same executed a trust deed to one J. Robson Weddell. The Quick mortgage was recorded on October 12, 1892, and the Weddell trust deed on the 13th day of October, 1892; and it is alleged in the bill that the Quick mortgage was a prior and superior lien to the Weddell trust deed securing appellant's note. Appellant became the owner of one of the notes securedby the Weddell trust deed, and the Central Safety Deposit Company became the owner of the other said notes. On March 30, 1899, in the circuit court of Lake county, a decree of foreclosure of the Quick mortgage was had upon her bill for that purpose; the decree finding that there was due upon the mortgage the sum of $10,483.87, and on June 20, 1899, a sale under that decree was had, at which appellee Martha A. Quick became the purchaser for $10,747.15. In that suit neither Fred W. Cornish, the payee, nor Martha A. Rodman or the Central Safety Deposit Company, the legal holders and owners of the notes secured by the trust deed to Weddell, were made parties, and had no notice of the proceeding. Weddell, the trustee, was made a party. The bill further alleges that, after making her purchase under the foreclosure proceeding, Martha A. Quick took possession of the premises and received large gains and profits by way of rents, etc., from said premises, which, it is alleged, amounted to more than the interest upon the debt secured by the Quick mortgage. The bill further alleges that the foreclosure proceedings, as to appellant, are and should be declared null and void by the court, and that appellant should be allowed to redeem from the Quick mortgage, and prays for a decree setting aside the sale and for the taking of an accounting to ascertain what is due appellee Martha A. Quick for principal and interest on the notes secured by her mortgage; that she be required to account for rents and profits derived from the premises while in her possession, and may be decreed, upon payment of the amount found due to her, to deliver up the possession of the mortgaged premises, free from incumbrance, to complainant, and that the mortgage of said Quick may be released and satisfied of record; and that appellant may be subrogated to all the rights of said Quick as against said Cozzens; and that said Cozzens may be decreed to pay appellant whatever sum shall be found to be due upon the taking of the accounting, together with costs of proceeding, and that, in default, the premises may be sold as the court may direct, etc.

The appellee the Central Safety Deposit Company filed its answer admitting the allegations of appellant's bill, and filed its cross-bill containing the same allegations and the same prayer as in appellant's bill, and containing the further allegation that, since the foreclosure proceeding, the appellee Quick had conveyed portions of said premises to one Albert C. Frost and to the Chicago & Milwaukee Electric Railroad Company. Martha A. Quick answered the bill and cross-bill, admitting all the substantial allegations of them, but denying that appellant had no notice of the pendency of the foreclosure proceeding or that she was entitled to redeem. Issues being joined, the cause was referred to the master to take proof, and to report the same, together with his conclusions, to the court. The master took the evidence and prepared his conclusions, finding the allegations of the bill supported by the evidence, and that appellant and said Central Safety Deposit Company were entitled to redeem from the foreclosure suit, and that the amount of redemption money required to be paid by one or both of them was the amount of the sale of the property under the foreclosure proceeding, with interest thereon at the rate of 6 per cent. and subsequent taxes paid, with interest thereon. To this report the appellant objected, upon the ground that the master should find the amount of redemption money to be the amount of the debt described in the Quick mortgage and notes, together with interest thereon to the date of redemption, instead of the amount bid at the foreclosure sale, with interest thereon. The objections were overruled. Exceptions were filed before the chancellor, which were overruled, and decree had according to the report of the master, except that the master recommended that six months' time for redemption be allowed, while the chancellor found and decreed that the redemption should be made within three months or the bill dismissed. Appellant appeals from that decree, and urges that the court erred in finding the amount to be paid by appellant to be the amount of the sale at the foreclosure suit, and in requiring appellant to pay all costs of the foreclosure suit under the Quick mortgage; and, further, that the time allowed for payment of the redemption money was unreasonably short.

RICKS, C. J. (after stating the facts).

It would seem to be well settled that a foreclosure proceeding, to which the mortgagor or person having an equity of redemption is not made a party, is, as to such person, a mere nullity. Bradley v. Snyder, 14 Ill. 263, 58 Am. Dec. 564;Ohling v. Luitjens, 32 Ill. 23;Dunlap v. Wilson, 32 Ill. 517;Cutter v. Jones, 52 Ill. 84;Jeneson v. Jeneson, 66 Ill. 259;Rose v. Walk, 149 Ill. 60, 36 N. E. 555;Gage v. Brewster, 31 N. Y. 218;Vroom v. Ditmas, 4 Paige, 526;Gaskell v. Viquesney, 122 Ind. 244, 23 N. E. 791,17 Am. St. Rep. 364. Appellant was not made a party to the foreclosure proceedings under the Quick mortgage, and the fact that Weddell, the trustee, was made a party did not affect the rights of appellant. A trustee, as well as the cestui que trust, is a necessary party in a foreclosure proceeding, and the general rule is, we think, that when the trustee is made a party to a chancery proceeding the beneficiaries must also be made parties, unless they be so numerous that it would be impracticable to do so. Chicago & Great Western Railroad Land Co. v. Peck, 112 Ill. 408; Van Vechten v. Terry, 2. Johns. Ch. 197. In the case at bar the notes described in the trust deed, under which appellant claims her right to redeem, were payable to a person named in the trust deed. There were but two of them. One was assigned to appellant's intestate in 1893, and the other was assigned to the complainant in the cross-bill, and the case cannot be excepted from the general rule on the ground that the number of beneficiaries made it impracticable to join them.

Where the foreclosure proceedings are irregular for the want of proper parties and the mortgagee purchases at the sale, it amounts to no more, so far as relates to the rights of persons not made parties, than an entry for condition broken; and if a stranger to the proceedings and mortgage becomes a purchaser, he will, as to those not made parties and having an equity of redemption, take an equitable assignment of the mortgage. Jackson v. Bowen, 7 Cow. 13; Robinson v. Ryan, 25 N. Y. 320;Ten Eyck v. Casad, 15 Iowa, 524. If, then, as to appellant, the foreclosure proceeding and sale were null, it must follow that appellant's right to redeem does not depend upon, or is not affected by, such proceeding and sale, but is controlled by the equitable rights existing between appellant and Mrs. Quick, as holder of the mortgage. Devested of the features of the foreclosure proceeding and sale, the rights of Mrs. Quick under the mortgage, so far as they relate to appellant, were to have the amount of her debt with interest to the time of the redemption, together with such taxes and interest thereon as she may have paid under authority of her mortgage and to preserve title, and there might be added thereto necessary repairs. But these amounts could not be augmented by costs and attorney's fees in the foreclosure proceeding, by which appellant is held not to be affected because not made a party thereto. 2 Jones on Mortgages, § 1084; Gage v. Brewster, 31 N. Y. 218;Moore v. Cord, 14 Wis. 213;Benedict v. Gilman, 4 Paige, 58;Vroom v. Ditmas, 4 Paige, 526;Bondurant v. Taylor, 3 G. Greene, 561;Hosford v. Johnson, 74 Ind. 479; Gaskell v. Viquesney, s...