Stone v. Tyler

• Decision Date: 21 April 1898
• Citation: 50 N.E. 688,173 Ill. 147
• Parties: STONE v. TYLER et al.
• Court: Illinois Supreme Court

173 Ill. 147

50 N.E. 688

STONE

v.TYLER et al.¹

Supreme Court of Illinois.

April 21, 1898.

Appeal from appellate court, First district.

Action by Albert S. Tyler against Albert J. Stone and another to enforce a mechanic's lien. From a decree for petitioner, an appeal was taken to the appellate court, which affirmed the decree (67 Ill. App. 17); and, from the judgment of affirmance, defendant Stone appeals. Reversed.Frank J. Crawford, for appellant.

Edward J. Walsh, for appellees.

The original petition was filed herein on September 22, 1892, and was a petition for a mechanic's lien. It set forth a contract made in 1891 by the appellees with the appellant, for furnishing and setting the glass in a building then being constructed by appellant on a certain lot in the city of Chicago, then owned in fee simple by appellant. The petition alleges that the glass was furnished and set in the building between November 13, 1891, and September, 1892. The original petition made the appellant and the Northwestern Mutual Life Insurance Company defendants. Two other persons were also made defendants, but as to these the suit was subsequently dismissed. An answer was filed by the appellant on January 6, 1893, admitting the making of the contract as set forth in the petition, admitting also the title to be in the defendant as alleged, and furthermore admitting that the contract was performed by the appellees in part, but alleging that it was performed so negligently that some of the glass fell from the doors and windows, and was broken and destroyed, so that appellant was compelled to employ other dealers to replace it, and for that purpose to expend $174.17. On May 9, 1894, the case was referred to a master in chancery, to take and report the evidence and his conclusions. The master filed his report on December 10, 1895, finding that the contract had been made as alleged; that the work had been completed on or about July 7, 1892; and that there was due to petitioners, for principal and interest, on account of glass furnished and set, the sum of $3,330.49; and that petitioners were entitled to a lien on the building and premises to the amount aforesaid. The report of the master recommended that the prayer of the petition be granted.

On January 19, 1892, appellant executed a mortgage upon said real estate and building to the Northwestern Mutual Life Insurance Company, to secure a loan of $75,000. Appellees agreed that this mortgage should be a lien upon the building and real estate prior and superior to their mechanic's lien. This agreement seems to have been made by the appellees on account of a promise made to them by appellant that he would pay them the amount of their claim out of the money loaned by the insurance company upon the mortgage. On April 16, 1895, the mortgagee, the insurance company, filed its bill in the United States circuit court for the Northern district of Illinois to foreclose said mortgage against the appellant and the appellees and others. In said foreclosure suit in the federal court, appellant and appellees were duly served with summons. On October 23, 1895, a foreclosure decree was therein entered for the amount due upon the mortgage, including interest and costs, and directing that, in default of payment within a certain time, the master in chancery of the federal court should sell the property. On December 4, 1895, under said foreclosure decree, the master sold the said real estate and building to the company, the mortgagee, for the sum of $90,776.27, being the amount due the company under the decree, including interest and costs. A certificate of purchase was issued to the company, as purchaser at said foreclosure sale, on December 5, 1895, and recorded in the recorder's office of Cook county on that day. On certain dates in 1894 and 1895, judgments were rendered in the circuit and superior courts of Cook county in favor of certain creditors against the appellant to the amount of $379,335.54, on which executions were issued, and returned nulla bona.

In the mechanic's lien suit, so as aforesaid begun in the court below on September 22, 1892, by the present appellees, a supplemental petition was filed by the appellees on December 12, 1895, and against the appellant and said mortgagee, the insurance company, to which the appellant filed an answer on January 18, 1896. Default was entered against the insurance company in the mechanic's lien suit. On February 21, 1896, the appellees filed in the court below, pursuant to leave granted, an amended supplemental petition, an answer to which was filed by the appellant on February 24, 1896. The amended supplemental petition, filed against the appellant and the insurance company as defendants, sets forth that the original petition for a mechanic's lien was filed on September 22, 1892; that the same was answered by appellant; that default was entered against the insurance company; that the cause was referred to the master; that the master made a report, finding the amount due as above stated; and that appellees were entitled to a lien. The amended supplemental petition also sets forth that a bill to foreclose was filed in the federal court by the insurance company, and that decree of sale was entered, and sale made as hereinbefore stated; that petitioners,the present appellees, consented to give the insurance company priority of lien over their mechanic's lien at the request of the appellant; and that appellees, on account of the superiority of the lien of said mortgage, refused to go into the United States court to prosecute their claim for a lien. The amended supplemental petition of the present appellees, so filed on February 21, 1896, ‘further represents that, under the provisions of the mechanic's lien law now in force, a receiver may be appointed to collect the rents, issues, and profits of real estate on which a mechanic's lien is claimed.’ The amended supplemental petition also alleges that Stone has failed to pay the appellees the amount due them, and that the building upon the premises is rented, and the appellant is collecting rents therefrom; that judgments, aggregating the amount aforesaid, have been rendered against appellant, which are unsatisfied; that appellant is insolvent; and that, unless a receiver is appointed to collect the rents and profits, the petition of appellees for a mechanic's lien will be nugatory, and the rights of the petitioners will be unduly prejudiced. Said petition therefore prays that a receiver be appointed to take charge of and manage the property, and collect the rents, issues, and profits thereof, with the usual powers of receivers in chancery. The answer of the appellant to the amended supplemental petition denies his insolvency, and charges the appellees with laches in the prosecution of their mechanic's lien suit, and with a failure to adjust with him the amount of credit claimed by him as aforesaid on account of the defective manner in which, as he claimed, the appellees had done their work; but the appellant admits in his answer the allegations of the supplemental petition as to the prior proceedings had in the mechanic's lien suit, as to the proceedings in the federal court, and as to the judgments aforesaid. The answer denies, that the petitioners are entitled to the relief asked and prays the same advantage, as if there had been a demurrer to the amended supplemental petition. On February 27, 1896, in the mechanic's lien suit, the court below appointed one MaKeel receiver to collect the rents of said premises in accordance with the prayer of the amended supplemental petition.

On May 28, 1896, the court below rendered a final decree in the mechanic's lien suit, finding that the appellant, on November 14, 1891, owned said real...