{ "id": 6045819, "name": "Michael Brahm et al. v. Mary Dietsch", "name_abbreviation": "Brahm v. Dietsch", "decision_date": "1884-08-20", "docket_number": "", "first_page": "331", "last_page": "?", "citations": [ { "type": "official", "cite": "15 Ill. App. 331" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "87 Ill. 222", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5343927 ], "opinion_index": -1, "case_paths": [ "/ill/87/0222-01" ] }, { "cite": "81 Ill. 374", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2672011 ], "opinion_index": -1, "case_paths": [ "/ill/81/0374-01" ] }, { "cite": "81 Ill. 72", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2671105 ], "opinion_index": -1, "case_paths": [ "/ill/81/0072-01" ] }, { "cite": "54 Ill. 281", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5275420 ], "opinion_index": -1, "case_paths": [ "/ill/54/0281-01" ] }, { "cite": "50 Ill. 56", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606997 ], "opinion_index": -1, "case_paths": [ "/ill/50/0056-01" ] }, { "cite": "62 Ill. 408", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2607579 ], "opinion_index": -1, "case_paths": [ "/ill/62/0408-01" ] }, { "cite": "30 Ill. 25", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5208404 ], "opinion_index": -1, "case_paths": [ "/ill/30/0025-01" ] }, { "cite": "27 Ill. 152", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5249971 ], "opinion_index": -1, "case_paths": [ "/ill/27/0152-01" ] }, { "cite": "4 Gilm. 511", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2561705 ], "opinion_index": -1, "case_paths": [ "/ill/9/0511-01" ] }, { "cite": "9 Wend. 287", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2011218 ], "opinion_index": -1, "case_paths": [ "/wend/9/0287-01" ] }, { "cite": "4 Wend. 381", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2005491 ], "opinion_index": -1, "case_paths": [ "/wend/4/0381-01" ] }, { "cite": "43 Ill. 464", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5265822 ], "opinion_index": -1, "case_paths": [ "/ill/43/0464-01" ] }, { "cite": "23 Ill. 33", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "27 Ill. 434", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5248077 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/27/0434-01" ] }, { "cite": "15 Ill. 97", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436649 ], "opinion_index": -1, "case_paths": [ "/ill/15/0097-01" ] }, { "cite": "38 Ill. 316", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 428227 ], "opinion_index": -1, "case_paths": [ "/ill/38/0316-01" ] }, { "cite": "68 Ill. 130", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "70 Ill. 231", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "89 Ill. 449", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "opinion_index": -1 }, { "cite": "55 Ill. 513", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "50 Ill. 275", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "27 Ill. 444", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5250078 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/27/0444-01" ] }, { "cite": "4 Gilm. 517", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": 0 }, { "cite": "55 Ill. 507", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5272185 ], "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill/55/0507-01" ] }, { "cite": "50 Ill. 274", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2607265 ], "opinion_index": 0, "case_paths": [ "/ill/50/0274-01" ] }, { "cite": "23 Ill. 33", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "27 Ill. 434", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5248077 ], "opinion_index": 0, "case_paths": [ "/ill/27/0434-01" ] }, { "cite": "15 Ill. 97", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436649 ], "opinion_index": 0, "case_paths": [ "/ill/15/0097-01" ] }, { "cite": "89 Ill. 449", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "50 Ill. 275", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 622, "char_count": 12334, "ocr_confidence": 0.579, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1721822391961848 }, "sha256": "16702cca6c1731387985400cd8bf145bbcf604fbcd50ce586950ead8739571ae", "simhash": "1:de359feb1d0ef690", "word_count": 2172 }, "last_updated": "2023-07-14T20:31:21.776284+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Michael Brahm et al. v. Mary Dietsch." ], "opinions": [ { "text": "Pleasants, P. J.\nThis was a bill filed April 27, 1883, to foreclose a mortgage executed by plaintiffs in error to one J olm Bey ser to secure a note of said Michael for \u00a7450, payable in one year with interest at eight per cent, per annum, assigned to defendant in error. The mortgaged premises are a house and lot in the city of Bock Island, and the homestead of the mortgagors, which was waived.\nBesides the usual averments the bill alleges that said Michael Brahm is insolvent and unable to redeem the property, and that it is scant security for and insufficient to pay the amount due with costs of this proceeding; and prays for a strict foreclosure.\nThe defendants having been defaulted the cause was referred to the master \u201c to take proofs of complainant\u2019s bill and state the account.\u201d\nOn June 9th he filed his report, setting forth the documentary evidence and the testimony of a single witness, the mortgagee, who stated as follows: \u201cI know the mortgaged property (describing it)\u2014think it not worth more than $600. I have known him (defendant Michael Brahm), for six or seven years. I know about his business. I believe he is unable to redeem said premises from the mortgage to me, now assigned to complainant. In my judgment the premises are scant and meager security for said indebtedness, including the costs.\u201d Upon the note was indorsed a credit of one year\u2019s interest, and the amount found due was $491.70. On the same day this report was approved, the cause set for hearing instanter, and the final decree filed. It recites that the cause was \u201c heard upon the bill of complaint and proofs taken \u201d\u2014finds the amount due to be as reported, and that the defendant Michael Brahm is insolvent and unable to redeem the mortgaged premises; that they are scant security for the debt and costs and that no benefit can inure to the defendants or either of them from a sale thereof, and orders that they pay complainant the amount so found due and the costs, within one month, or in default thereof be barred and foreclosed from all equity of redemption and claim of, in and to said premises, and complainant be let into possession. Defendants sued out this writ of error.\nIn view of the policy of our statute providing for sale under certain decrees as well as judgments and allowing the right of redemption therefrom to the debtor, his heirs, assigns and creditors\u2014which is to make the property pay, in their interest, all it is really worth\u2014strict foreclosure is exceptional and not favored. Still it may be decreed, in the discretion of the court, where the interests of both parties manifestly require it; but not otherwise. Johnson v. Donnell, 15 Ill. 97; Stephens v. Bicknell, 27 Ill. 434. That of the debtor includes his obligation to other creditors and subsequent purchasers. Hence where there are other incumbrancers, creditors or subsequent purchasers, this kind of decree will not be allowed Farrell v. Parlier, 50 Ill. 274; Ronoke v. Colton, 4 Bradwell, 257. So, where the property exceeds in value the amount of the mortgage debt and costs it is obvious that to take it for the debt can not be for the interest of the debtor. Hence every bill for a strict foreclosure should aver that this value does not exceed that amount. See, besides the cases supra, Sheldon v. Patterson, 55 Ill. 507, 513; Boyer v. Boyer, 89 Id. 447; Greenemeyer v. Deppe, 6 Bradwell, 490; Miller v. Davis, 5 Id. 474; Murphy v. Stith, Id. 562.\nWhether it should also aver that notwithstanding it is of less value the complainant is willing to take it in full satisfaction of the debt, is perhaps not settled in this State. In Vansant v. Allmon, 23 Ill. 33, and Edgerton v. Young, 43 Id. 470, it was said that according to the weight of authority strict foreclosure in such a case operates to extinguish the debt only pro tanto. -But the precedents there referred to (for none are cited) are believed to be mainly from jurisdictions in which such decrees are not exceptional; and later cises indicate that whether it is or is not an imperative rule of equity, our courts, in the exercise of their discretion, will require him to accept it as a discharge in full. Farrell v. Parlier, Boyer v. Boyer, Miller v. Davis, Murphy v. Stith\u2014all above cited. This works no hardship to the creditor, because the debtor is shown as part of the case, to be insolvent. We are not now called on to express a more decided opinion on this point, since there are other grounds above indicated upon which with greater confidence .we reverse this decree.\nThe evidence preserved in the master\u2019s report must be held, as against the complainant, to be that the property was worth $600, which is considerably more than the debt and costs. So far as appears this is the uncontradicted testimony of her own witness, the mortgagee and her assignor.\nCounsel contend that upon the recital in the final decree this court should presume, in its favor, that other proof on this subject which supports the finding was also taken. That recital is that \u201c the cause came on to be heard upon the bill of complaint and proofs taken; \u201d and it is said that since this does not refer in terms to the master\u2019s report it ought not to be so limited. But interlocutory orders relating to this report also appear in the record, and being as much a part of it as is the final decree, should be considered in connection with i ts recital as if they also were recited in it. The record, then, shows a reference to the master to take and report proofs, proofs so taken and reported,' the report approved, and the cause thereupon immediately heard upon bill and proofs taken. Without still other expression indicating the proofs taken or other proofs otherwise appearing, the presumption is that only those taken and reported by the master were heard. Boyer v. Boyer, 89 Ill. 449.\nIt is further urged that upon a bill taken pro confesso the court may find the facts averred, without requiring any proof, and therefore the defendant can not object to the finding nor to the appropriate decree thereon, for insufficiency of proof. We so understand the law. Manchester v. McKee, 4 Gilm. 517; Stephens v. Bichnell, 27 Ill. 444; Boston v. Nichols, 47 Id. 357\u20148 and cases there cited. For that reason we have not noticed the question of the insolvency of Brahm. The fact was averred and the finding, as to that, is beyond the reach of objection. It is not unreasonable to believe an averment not denied by the party interested to deny it if untrue, although the proof offered be not of itself sufficient to establish it, notwithstanding we think the proof of it rather insufficient. But in respect to the value of the premises as compared with the amount of the debt, a different question is presented. The circuit court did not see fit to dispose of this ease upon the bill taken as confessed, but deemed it \u201c requisite\u201d in the language of the statute (R. S. Chancery \u00a7 18) \u201cto require the complainant to produce documents and witnesses to prove the allegations of her bill.\u201d\nThe evidence so produced touching the allegation in question was not merely insufficient to prove it, but affirmatively and clearly disproved it; and it is unreasonable to believe an averment that is disproved, even though it be not denied by the party interested to deny it. The fact alleged being necessary to support the decree, we think it was erroneous to override or disregard the proof, and inequitable to give to complainant property of the defendant worth $600, for a debt of less than five hundred. Besides it is neither averred nor proved that there was no other creditor or purchaser having an interest subject to the mortgage.\nWe are also of opinion that the time limited for the payment was too short. The reason of the rule in case of sale without redemption applies with equal force to a case of strict foreclosure. Farrell v. Parlier, 50 Ill. 275.\nFor these errors the decree of the circuit court is reversed and the cause remanded for further proceedings in conformity herewith.\nReversed and remanded.", "type": "majority", "author": "Pleasants, P. J." } ], "attorneys": [ "Messrs. Sweeney & Walker, for plaintiffs in error;", "Mr. M. M. Corbett and Mr. J. T. Kenwortiiy, for defendant in error;" ], "corrections": "", "head_matter": "Michael Brahm et al. v. Mary Dietsch.\n1. Strict foreclosure.\u2014In view of the policy of our statute, strict foreclosure is exceptional, and not favored. It may he de :reed, however, in the discretion of the court, where the inteiests of both parties manifestly require it, but not otherwise.\n2. Necessary averments in bill for strict foreclosure.\u2014Every bill for a strict foreclosure should aver that the property does not exceed in value the amount of the mortgage debt. Quaere, whether it should also aver that, notwithstanding it is of less value, the complainant is willing to take it in fu 1 satisfaction of the debt.\n3. Chancery\u2014Evidence.\u2014Where the record showed reference to the master to take and report proofs, proofs so taken and reported and the iv port approved, and that the cause thereupon was immediately heard upon bill and proofs taken, and the master\u2019s report showed that the property was worth considerably more than the mortgage debt. Held, that a court can not presume from the recital in the final decree that \u201c the cause came on io be heard upon the bill of complaint and proofs taken,\u2019\u2019 that other proof on the subject of the value of the property which supported the finding was also taken. Without still other expression indicating the proofs taken, or other proofs otherwise appearing, the presumption is that only those taken and reported by the master were heard.\n4. Bill taken pro confesso\u2014Evidence.\u2014Upon a bill taken pro confesso, the court may find the facts averred without requiring any proof, and the defendant can not object to the finding nor to the appropriate decree thereon; but where, upon a bill so taken, the court deemed it requisite to require Ihe complainant to produce evidence to prove the allegations of her bill, and such evidence affirmatively and clearly proved that the value of the property mortgaged was more than the mortgage debt. Held, that it was error to disregard such evidence.\n5. Strict foreclosure\u2014Time for payment.\u2014Where, in a bill for a strict foreclosure, the decree ordered that defendants pay complainant the amount found due within one month, or, etc. Held, that the time limited for the payment was too short. The reason of the rule, in case of sale without redemption, applies with equal force to a case of strict foreclosure.\nError to the Circuit Court of Bock Island; the Hon. A. A. Smith, Judge, presiding.\nOpinion filed August 20, 1884.\nMessrs. Sweeney & Walker, for plaintiffs in error;\nas to what must be proved in case of a strict foreclosure, cited Farrell v. Parlier, 50 Ill. 275; Sheldon v. Patterson, 55 Ill. 513; Boyer v. Boyer, 89 Ill. 449; Rourke v. Coulton, 4 Bradwell, 271; Greenemeyer v. Deppe, 6 Bradwell, 491.\nIn chancery cases it is not to be presumed that any evidence was given in the cause in the court below, except what appears in the record: Kennedy v. Merriam, 70 Ill. 231; McIntosh v. Saunders, 68 Ill. 130; Cooley v. Scarlett, 38 Ill. 316; Boyer v. Boyer, 89 Ill. 449.\nMr. M. M. Corbett and Mr. J. T. Kenwortiiy, for defendant in error;\nas to strict foreclosure, cited Johnson v. Donnell, 15 Ill. 97; Stephens v. Bichnell, 27 Ill. 434; Hilliard on Mortgages, 4th Ed. 31; Jones on Mortgages, \u00a7 1545.\nA strict foreclosure only pays or discharges the debt pro tanto: Vansant v. Allmon, 23 Ill. 33; Jones on Mortgages, \u00a7\u00a7 950, 1567, 1597; Hilliard on Mortgages, Ch. 36, \u00a7\u00a7 1-10; Edgerton v. Young, 43 Ill. 464; Spencer v. Harford, 4 Wend. 381; Morgan v. Plumb, 9 Wend. 287.\nWhere a decree is taken pro oonfesso, it is discretionary with the chancellor to render a decree without proofs, and the defendant can not make any objection that the proofs do not sustain the allegations of the bill: R. S. 1874, Ch. 22, \u00a7 18; Manchester v. McKee, 4 Gilm. 511; Smith v. Trimble, 27 Ill. 152; Stephens v. Bichnell, 27 Ill. 434; Harmon v. Campbell, 30 Ill. 25; Benneson v. Bill, 62 Ill. 408.\nWhere an objection is urged to a decree that the evidence is insufficient to support it, and the decree does not purport to give the evidence in the record, but merely states that a hearing was' had upon the proofs and the necessary facts are found by the decree, it will bind: Preston v. Hodgen, 50 Ill. 56; Mauck v. Mauck, 54 Ill. 281; Morgan v. Corlies, 81 Ill. 72; Wright v. Troutman, 81 Ill. 374; Darst v. Thomas, 87 Ill. 222." }, "file_name": "0331-01", "first_page_order": 335, "last_page_order": 340 }