{
  "id": 5003329,
  "name": "John Magloughlin et al. v. Albert B. Clark",
  "name_abbreviation": "Magloughlin v. Clark",
  "decision_date": "1890-01-22",
  "docket_number": "",
  "first_page": "251",
  "last_page": "254",
  "citations": [
    {
      "type": "official",
      "cite": "35 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": "100 Ill. 592",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2823164
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/100/0592-01"
      ]
    }
  ],
  "analysis": {
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    "simhash": "1:5b7773d8a7656ae6",
    "word_count": 979
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  "last_updated": "2023-07-14T15:52:12.584336+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "John Magloughlin et al. v. Albert B. Clark."
    ],
    "opinions": [
      {
        "text": "Gary, P. J.\nThis is a bill filed to foreclose a deed of trust in the nature of a mortgage. Two questions arise upon this record.\nThe first is as to the sufficiency of the evidence to warrant the allowance of $100 as an attorney\u2019s fee provided for in the deed in case of foreclosure.\nThat evidence was as follows, the witness being an attorney:\n\u201c Do you know what reasonable solicitor\u2019s fees are in foreclosure suits of this kind ? \u201d\n\u201c I know what is customary and what is reasonable.\u201d\n\u201c What is the usual customary fee? \u201d\n\u201c The usual customary fee\u2014it is usually provided for in the trust deed. There is usually allowed not less than $100.\u201d\nThe only question by the appellant was:\n\u201cAre you the attorney of record in this case ? \u201d\nAnd the answer was, \u201c I am not.\u201d\nIt is apparent that the appellants\u2019 counsel did not deem the amount unreasonable, and impliedly assented to it. Even without such implication the testimony is enough to warrant the fee of but little over five per cent of the amount involved in a litigated foreclosure suit.\nThe other question arises in this way:\nThe appellee is the assignee of the principal and later interest notes secured by the trust deed in this case. Some eighteen months before he became such assignee, he then being the holder of the indebtedness secured by a junior trust deed, made by the same appellant upon the same premises, either he, or the trustee in that junior incumbrance, bought from the then holder of the subject of the present suit some overdue interest notes remaining unpaid, and some certificates of redemption of the premises by that holder from tax sales. It is not denied that in the hands of that holder those interest notes and certificates were secured upon the premises by the deed in suit; but it is contended that by such purchase they were taken out of the operation of that deed, and the security lost.\nIt is familiar law in this State that the debt is the principal, and the mortgage the incident, where a debt is secured by mortgage; that the assignment of part of the debt carries the benefit and control of the security upon such terms as the relations between the assignee and the holder of the residue of the debt may require. Humphreys v. Morton, 100 Ill. 592, and cases there cited by counsel as well as court.\nHow, the pur'chase by the trustee in, or by the holder of the indebtedness of a prior incumbrance, of any part of the indebtedness of a junior incumbrance, must, as between the two incumbrances, be held to be so much in the nature of a partial redemption, as to leave to the holder of the residue, priority of right to the satisfaction of that residue, before applying any proceeds of the property to the satisfaction of that part of the debt so sold. There is nothing in the nature of the transaction or the relative equities of the parties requiring any further modification of the general rule.\nBy the express provisions of this deed of trust the money paid to redeem from tax sales with interest at eight per cent became \u201cso much additional indebtedness secured by the deed.\u201d\nIn equity any indebtedness is assignable. Bispham\u2019s Eq., Sec. 164. The little uncertainty, of which the appellants have endeavored to make much, as to what the appellee may have represented as to whether he or the trustee paid for the part of the debt bought, is too unimportant for consideration. Perhaps it may be disputed whether any part of that debt was bought; whether the transaction was not rather a payment of so much of the debt. If that is the right view the result is the same. A junior incumbrancer paying a prior one is subrogated to the rights of the latter. 2 Jones on Mort., Sec. 1080.\nThe appellants seem to assume that the court, on this appeal, will go outside of the record of this case, and refer to its record or memory of former litigation to the prejudice of the appellee. This appeal is to be decided by this record by the evidence admitted, and by considering whether evidence rejected would, if admitted, have changed the aspect of the material facts.\nThere is no error in the record, and the decree is affirmed.\nDeai'ee affirmed.",
        "type": "majority",
        "author": "Gary, P. J."
      }
    ],
    "attorneys": [
      "Messrs. Wilson & Zook, for appellants.",
      "Mr. C. 0. March, for appellee."
    ],
    "corrections": "",
    "head_matter": "John Magloughlin et al. v. Albert B. Clark.\nTrust Deeds\u2014Foreclosure\u2014Attorney's Fee\u2014Interest Dotes\u2014Purchase of by Holder of Junior Incumbrance\u2014Evidence\u2014Mortgages.\n1. This court holds that the evidence introduced in the case presented warranted the allowance of the sum provided for in a trust deed as attorney\u2019s fee in case of foreclosure.\n2. Where a debt is secured by a mortgage, the assignment of part of the debt carries the-benefit and control of the security, upon such terms as the relations between the \u00e1ssignee and the holder of the residue of the debt may require.\n3. The purchase by the trustee in, or by the holder of the indebtedness, of a prior incumbrance, of any part of the indebtedness of a junior incumbrance, must, as between the two, be held to be so much in the nature of a partial redemption, as to leave to the holder of the residue priority of right to the satisfaction of that residue, before applying any proceeds of the property to the satisfaction of that part of the debt so sol d.\n4. This court will not go outside the record in a given case, and refer to its record or memory of former litigation to the prejudice of parties to such case.\n[Opinion filed January 22, 1890.]\nAppeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.\nMessrs. Wilson & Zook, for appellants.\nMr. C. 0. March, for appellee."
  },
  "file_name": "0251-01",
  "first_page_order": 247,
  "last_page_order": 250
}