{
  "id": 2475711,
  "name": "Michael J. Cahill et al. v. John M. Lauf",
  "name_abbreviation": "Cahill v. Lauf",
  "decision_date": "1907-05-13",
  "docket_number": "Gen. No. 13,105",
  "first_page": "607",
  "last_page": "612",
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      "cite": "133 Ill. App. 607"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
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  "last_updated": "2023-07-14T19:31:03.243405+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Michael J. Cahill et al. v. John M. Lauf."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Brown\ndelivered the opinion of the court.\nThere seems to us a misapprehension of the true questions at issue in this cause in the argument of counsel for defendant in error. They speak in their argument of occupying the position of \u201cpurchasers in good faith and without notice of commercial paper that was for sale.\u201d This may be a truthful claim so far as the notes and any personal remedy on them is concerned, but since the decision of Olds v. Cummings, 31 Ill., 188, it has been the declared law of Illinois that there was no such thing as negotiability in the technical and \u201claw merchant\u201d sense in mortgage securities as such. They are assignable as incidents to the debts evidenced by the notes which they secure, but they are not negotiable so as to cut off defenses to enforcement by foreclosure which existed against the original taker. In other words, they have not that attribute of negotiability in the commercial sense through which a man may, under some conditions, convey a better title to them than he himself could enforce.\nNumerous other cases in the Supreme Court and in this court, following Olds v. Cummings, supra, establish this doctrine beyond question. Miller v. Larned, 103 Ill., 562; Chicago Title & Trust Co. v. Aff, 183 Ill., 91; Romberg v. McCormick, 194 Ill., 205; Bebber v. Moreland, 100 Ill. App., 198, are examples.\nIn the case at bar, although the mortgage security was in the- form of a trust deed, and although the notes which it secured were made payable to the order of the maker, Michael J. Cahill, and by him indorsed in blank, this rule would prevail. That is, if before the first and original taker, James B. Ryan, parted with the security there had accrued to Michael J. Cahill a defense valid against said Ryan as to its foreclosure, then, although Hammond and Lauf, the successive subsequent purchasers of it, might be innocent purchasers, and although Cahill might be personally liable on his notes to them, and on them a personal judgment might be procured against him by Lauf, yet a decree in foreclosure which could not be rendered in favor of Ryan, could not be so rendered in favor of Lauf.\nIf, therefore,-the decree depended on the position chiefly insisted on by the defendant in error, we should be obliged to reverse it. We do not, however, think it was so placed by the court below. It certainly was not recommended by the master on that ground. The reason which he gives is that the defense of partial payment, failure of consideration, or set-off put forward by the defendant, was not sustained by that \u201cdirect, positive and preponderating kind\u201d of evidence which he \u201cdeemed necessary.\u201d Of course the defense or defenses, except as to the excessiveness of the solicitor\u2019s fees, were of a nature which placed the burden of proving them on the defendant. The presentation of notes and trust deed made a prima facie case for the decree which was entered, which it was for the defendant to overcome.\nIt has been necessary for us, therefore, to examine the record carefully to see if the master\u2019s judgment adverse to the sufficiency of the evidence to sustain the defendant\u2019s case, is, in our opinion, borne out.\nWe think that it is impossible to read the testimony in the record as it was taken without being impressed with the truth of the master\u2019s statement that the evidence of the defendant on which a set-off against Ryan before he sold the note is sought to he predicated, is lacking in directness and definiteness. Without detailing it, we cannot show this with explicitness. It is to be noted that no date except the year 1899 was given for the incident which was thus described by Mr. Cahill under the examination of his counsel.\n\u201cQ. During the time that Mr. Ryan held this trust deed and note, I will ask you whether or not he owed you any money ? A. Tes, sir.\nQ. How much did he owe you ? A. $700.\nQ. State what that was for? A. I gave him a mortgage on 70 acres in Palos Park. He gave me sums from time to time, and he gave me $1,300\u2014there was $2,000 coming. I got somebody to take that up and he would not release it, and we had to pay it under protest.\nQ. Mr. Ryan agreed to give you $2,000, for which you then gave him a trust deed and note on some property in Palos Park ? A. Tes, sir.\nQ. He advanced you only $1,300. Tes, sir.\nQ. Leaving balance due you of \u2014\u25a0 A. $700.\nThe Master: When was that? A. In 1899.\nThe Master: Previous to this ? A. Ho sir, after this note was made.\u201d\nThis is all the evidence on the subject. It certainly would seem as though such a set-off should he proved with detail and precision. Documentary evidence to sustain a part of the story must have been in existence. But what must he particularly noticed is that although Mr. Cahill testified (in answer to his counsel\u2019s leading question) that \u201cwhile Mr. Ryan held the trust deed and note\u201d involved in the present case, he owed him (Cahill) money, Cahill had just before testified that he did not know at what time Mr. Ryan parted with the possession of these papers and Mr. Hammond became the-owner of them. While there is evidence of Mr. Lauf in the case that he became possessed of the notes by transfers from Mr. Hammond in 1901 or 1902, and Mr. Cahill says-\u2014 without giving the means of his knowledge\u2014that it was early in 1901, there is no evidence in the record, although Hammond was a witness and might have been examined on the point, as to when Ryan parted with them to Hammond. Even if Ryan did in 1899 owe $100 to Cahill\u2014of which we consider the proof very scanty and indefinite\u2014it might have been only after he had parted with this note and trust deed in question, which is dated in October, 1898. If it were, it certainly could form no credit in the foreclosure of the trust deed.\nWe do not think it necessary to advert further to this alleged want of the credit either of the $100, or of the coupon notes disputed.\nHor is there anything to show that the solicitor\u2019s fee was excessive. The oral evidence introduced about it supported it.\nBut it is insisted that there was proved a set-off against Lauf himself of $818.80, for advertisement of his own and his daughter\u2019s business in Cahill\u2019s papers, the \u201cCatholic Pilot\u201d and the \u201cHome Light,\u201d for three years. The burden of proving this set-off to the notes was on Cahill. He failed to sustain it because the contract which he claimed, viz., that he should insert the advertisements and \u201cnot charge much,\u201d is explicitly denied by Lauf, who says that Cahill expressly asked permission to put the advertisements in for nothing and as a mark of gratitude for leniency. Cahill\u2019s failure to present bills for three years, although part of the time at least he was paying interest to Lauf, tends somewhat to corroborate Lauf.\nWhere the court has confirmed a master\u2019s report, the decree must be plainly and clearly against the evidence to justify a reversal. Siegel v. Andrews & Co., 181 Ill., 350-356; Bogue v. Franks, 100 Ill. App., 434.\nThe decree of the Circuit Court is affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Mr. Presiding Justice Brown"
      }
    ],
    "attorneys": [
      "Dickinson & Haremski, for plaintiffs in error.",
      "Longenecker & Longenecker, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Michael J. Cahill et al. v. John M. Lauf.\nGen. No. 13,105.\n1. Mortgage securities\u2014character of title conveyed by assignment. The owner of mortgage securities, as such, can convey no better title than that which he himself can enforce.\n2. Foreclosure\u2014what establishes prima facie case.' The presentation of notes and trust deed makes a prima facie case, justifying a decree of foreclosure.\n3. Set-off\u2014character of evidence essential to establish, as defense to foreclosure proceeding. Evidence of a set-ofE in an action of foreclosure must be direct and definite in character.\n4. Master in chancery\u2014when finding of, will not be disturbed. The findings of a master approved by the chancellor will not be disturbed on review unless plainly and clearly against the evidence.\nForeclosure. Error to the Circuit Court of Cook County; the Hon. Henry B. Willis, Judge, presiding.\nHeard in this court at the October term, 1906.\nAffirmed.\nOpinion filed May 13, 1907.\nStatement by the Court. The defendant in error, John M. Lauf, as complainant, March 23, 1904, filed his bill in the Circuit Court to foreclose a trust deed in the nature of a mortgage, signed by Michael J. Cahill, one of the plaintiffs in error, under date of October 26, 1898, conveying certain lots in Hawhe\u2019s Subdivision in section 22, township 38, in Ooolc county, to secure a principal promissory note for $1,300, executed by said Cahill, payable to the order of himself three years after date, with interest at 6 per cent, payable semi-annually, and by said Cahill indorsed. Of this principal note and certain unpaid interest coupons evidencing the interest thereon, the bill alleged the complainant to be holder and owner.\nAfter issues were joined the cause was referred to Thomas J. Holmes, master in chancery, to take proofs and report his conclusions thereon. After the master\u2019s report was made and filed, however, the court referred the cause back to said master to take further proofs therein. Pending the hearing before him, said Holmes ceased to be master, and was appointed a special commissioner in this cause to finish the taking of proofs and report the same, with his conclusions, to the court. The commissioner reported in favor of the complainant, finding that there was due to him upon said notes and trust deed $1,630.45, and the further sum of $150 for a solicitor\u2019s fee, and recommended that a decree of foreclosure be entered in accordance with said findings. He stated'the defendant\u2019s contentions and his conclusions thereon, as follows:\n\u201cIt appears from the testimony that the complainant Lauf purchased said trust deed and notes from one Herbert Hammond in 1901. At the time the papers were made they were delivered to James B. Byan, and- through Herbert Hammond became the property of complainant. The consideration for the making of the notes and trust deed was the cancelling of a claim for interest and other bills then due from Mr. Cahill to said Byan. It is claimed on behalf of the defendant Cahill that after the loan in question was made, Cahill secured another loan from Byan and gave another trust deed and notes on other real estate to secure the same, but that Cahill did not receive from Byan the full amount called for by that trust deed and notes, and that therefore Cahill should be allowed a credit for said deficiency on the note and trust deed now in foreclosure. It is also claimed on behalf of the defendant Cahill that he should in this account be allowed a bill for advertising of the complainant Lauf and his daughter in two certain publications of the defendant Cahill. It is also claimed that the amount allowed to complainant as his solicitor\u2019s fees is excessive. But I find that the proof in support of the above contentions on the part of the defendant is not of that direct, positive, and preponderating kind which I deem necessary to support such contentions in this case.\u201d\nA decree was entered in conformity with the recommendation of the special commissioner, and to reverse this decree a writ of error was sued out of this court.\nBy his assignments of error and his argument under' them in this court, the plaintiff in error makes the contentions set forth in the commissioner\u2019s report.\nDickinson & Haremski, for plaintiffs in error.\nLongenecker & Longenecker, for defendant in error."
  },
  "file_name": "0607-01",
  "first_page_order": 625,
  "last_page_order": 630
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