{ "id": 2599582, "name": "Margaret W. Ryan et al. v. Illinois Trust and Savings Bank", "name_abbreviation": "Ryan v. Illinois Trust & Savings Bank", "decision_date": "1902-02-21", "docket_number": "", "first_page": "251", "last_page": "254", "citations": [ { "type": "official", "cite": "100 Ill. App. 251" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "149 Ill. 182", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5472038 ], "opinion_index": 0, "case_paths": [ "/ill/149/0182-01" ] }, { "cite": "93 Ill. 215", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2734047 ], "opinion_index": 0, "case_paths": [ "/ill/93/0215-01" ] }, { "cite": "78 Ill. 380", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 823991 ], "opinion_index": 0, "case_paths": [ "/ill/78/0380-01" ] }, { "cite": "59 Ill. App. 415", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5151456 ], "opinion_index": 0, "case_paths": [ "/ill-app/59/0415-01" ] }, { "cite": "128 Ill 279", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5413215 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/128/0279-01" ] }, { "cite": "21 Ill. 148", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2602293 ], "opinion_index": 0, "case_paths": [ "/ill/21/0148-01" ] }, { "cite": "96 Ill. App. 206", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 871126 ], "opinion_index": 0, "case_paths": [ "/ill-app/96/0206-01" ] }, { "cite": "72 Ill. App. 640", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5241545 ], "opinion_index": 0, "case_paths": [ "/ill-app/72/0640-01" ] }, { "cite": "79 Ill. App. 644", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5787127 ], "opinion_index": 0, "case_paths": [ "/ill-app/79/0644-01" ] } ], "analysis": { "cardinality": 413, "char_count": 7031, "ocr_confidence": 0.563, "pagerank": { "raw": 2.1175374468421016e-07, "percentile": 0.7640708010389795 }, "sha256": "ef7fbb5f3c47edd54b7a9cfb3f739d3ef753c231752f03463ce8543aba51d27c", "simhash": "1:389c1fa7db309610", "word_count": 1236 }, "last_updated": "2023-07-14T20:58:18.095621+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Margaret W. Ryan et al. v. Illinois Trust and Savings Bank." ], "opinions": [ { "text": "Mr. Justice Shepard\ndelivered the opinion of the court.\nThis is an appeal from a decree of foreclosure and sale, entered on a bill filed for that purpose. The errors that are assigned and argued, consist of those that affect the right and power of the Superior Court to appoint a receiver pending the suit; to continue the receiver in possession after final decree; the allowance of solicitor\u2019s fees, and what may be termed a variance between the indebtedness alleged and that proved.\nThe trust deed contained a provision whereby the makers of it released and waived \u201c all right to retain possession of said premises after any default in payment or a breach of any of the covenants or agreements herein contained.\u201d Then followed two provisions, providing an alternative mode of enforcing the first provision above, viz., after' default, on application of the legal holder of the note secured thereby, it should be lawful for the trustee or his successor in trust \u201cto enter into and upon and take possession \u201d of the granted premises, or any part thereof, or, under like circumstances, the legal holder of the note might file a bill, in his own name or otherwise, in any court of competent jurisdiction, against the party of the first part, her heirs, etc., to obtain a decree for the sale of the mortgaged premises, or any part thereof, \u201c and the court may then appoint a receiver to collect the rents during the pendency of the suit.\u201d Here are two provisions providing alternative methods for enforcing the first above provision, releasing the mortgagor\u2019s right to retain possession of the mortgaged premises after default\u2014one by entry and taking possession by the trustee, and the other by filing a bill and procuring the appointment of a receiver. The effect of these provisions was to constitute a mortgage of the rents and profits of the specific premises conveyed by the trust deed, and a contract for a lien of that kind will be enforced. Loughridge v. Haugan, 79 Ill. App. 644; First National Bank of Joliet v. Illinois Steel Company, 72 Ill. App. 640; Cohn v. Franks, 96 Ill. App. 206.\nBut it is claimed by appellants that their release of the right of possession was made in favor of the trustee, as a sort of personal trust in him, and has no application in connection with the provision for the appointment of a receiver in case of a suit brought by the holder of the note. We do not think so. The trust deed was in effect the same as a mortgage. It was given to secure a debt, and the holder of the debt is entitled to all the security that is given to the trustee. (Sargent v. Howe, 21 Ill. 148; Cheltenham Improvement Company v. Whitehead, 128 Ill 279.) Moreover, the authority to appoint a receiver was express, that upon default and the filing of a bill to foreclose, a receiver should be appointed. There is nothing unconscionable about it, that does not apply to every case of a mortgage which authorizes the appointment of a receiver after default, and on application of the holder of the indebtedness secured by it. \u201c Rents and profits are just as much property as the estate out of which they arise, and are equally the subject of mortgage or sale.\u201d First Rational Bank v. Illinois Steel Company, supra.\nWe do not regard the authorities cited by appellants as controlling, or even as applicable \u25a0 in decisive respects, but do not take time to review them in our opinion.\nAppellants complain because the receiver is continued until the further order of the court, but make very little argument to support their position, except to say that the suit was terminated when the final decree was entered. Manifestly, if the occasion for the appointment of a receiver existed, as we think it did, that occasion does not cease with the entry of a decree of sale. Whether or not the occasion will end when the result of a sale is known, depends on matters not now before us, and not even susceptible of forecasting.\nIt is next contended that the proofs are of a note different from the one alleged in the bill, and this contention seems to be based on the fact that the note mentioned in the trust deed is there recited to have been delivered to the trustee, August G-atzert, whereas it is alleged in the bill to have been delivered to the complainant, the Illinois Trust and Savings Bank.\nThe allegation of the bill is that the note was indorsed in blank by the makers, to whose order it was payable, and by them delivered to the complainant, who is now the owner thereof. And upon the hearing the note was offered in evidence, and a clerk in appellee\u2019s bank testified that the Illinois Trust and Savings Bank was the owner of it at the time it was offered, and at the time the bill was filed. And the president of the bank testified that the election to declare the note due was made at his direction. The appellants introduced no evidence to the contrary, but relied simply on the note and trust deed.\nThe note in evidence corresponding with the one described in the trust deed, was prima facie evidence that it is the same as the one described in the mortgage. Wolcott v. Lake View B. and L. Association, 59 Ill. App. 415.\nBesides, the proper delivery of a promissory note indorsed in blank is presumed, and the title to it is prima facie in the person in whose possession it is. Palmer v. Nassau Bank, 78 Ill. 380; Morris v. Preston, 93 Ill. 215.\nThe solicitor\u2019s fees were properly allowed. Heffron v. Gage, 149 Ill. 182; Cheltenham Improvement Company v. Whitehead, 128 Ill. 279.\nWe observe nothing else requiring special mention, and there only remains to order an affirmance of the decree. Affirmed.", "type": "majority", "author": "Mr. Justice Shepard" } ], "attorneys": [ "Thomas E. D. Bradley and Augustus A. Gage, solicitors for appellants.", "James C. Hutchins and Max Baird, counsel for appellee." ], "corrections": "", "head_matter": "Margaret W. Ryan et al. v. Illinois Trust and Savings Bank.\n1. Rents\u2014During Foreclosure Suits May be Mortgaged.\u2014The effect of a provision in a trust deed authorizing, after a default, the appointment of a receiver to collect the rents during the pendency of a suit to foreclose, is in effect a mortgage of the rents and profits of the specific premises conveyed by the trust deed.\n2. Rents and Profits\u2014May be Included in a Trust Deed.\u2014Rents and profits are just as much property as the estate out of which they arise, and as such are equally the subject of mortgage.\n3. Receivers\u2014Appointment of, Under Trust Deeds.\u2014Where a trust deed authorizes, upon a default and the filing of a bill to foreclose by the holder of the indebtedness, the appointment of a receiver to enter upon and take possession of the premises, such appointment is properly made.\n4. Presumptions\u2014Ownership from Possession\u2014Promissory Notes.\u2014 The proper delivery of a promissory note, indorsed in blank, is presumed, and the title to it is, prima facie, in the person in whose possession it is.\nBill of Foreclosure. \u2014 Appeal from the Superior Court of Cook County; the Hon. Arthur H. Ohetlain, Judge, presiding.\nHeard in the Branch Appellate Court at the October term, 1900.\nAffirmed.\nOpinion filed February 21, 1902.\nThomas E. D. Bradley and Augustus A. Gage, solicitors for appellants.\nJames C. Hutchins and Max Baird, counsel for appellee." }, "file_name": "0251-01", "first_page_order": 277, "last_page_order": 280 }