{
  "id": 5193731,
  "name": "Solomon Loewenstein v. Leland S. Rapp and Lillian M. Rapp",
  "name_abbreviation": "Loewenstein v. Rapp",
  "decision_date": "1897-01-07",
  "docket_number": "",
  "first_page": "678",
  "last_page": "681",
  "citations": [
    {
      "type": "official",
      "cite": "67 Ill. App. 678"
    }
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "21 Ill. App. 60",
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  "last_updated": "2023-07-14T17:00:34.097112+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Solomon Loewenstein v. Leland S. Rapp and Lillian M. Rapp."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Waterman\ndelivered the opinion oe the Court.\nThe provisions of the trust deed, regarding payment of taxes and solicitors\u2019 fees, are as follows:\n\u201c To obtain a decree for the sale and conveyance of the whole or any part of said premises, for the purpose herein specified, * \"x\" * and out of the proceeds of any such sale to first pay the costs of such suit, all costs of advertising, sale and conveyance, including the reasonable fees and commissions of said party of the second part, or person who may be appointed to execute this trust, and one hundred dollars attorneys\u2019 and solicitors\u2019 fees, and also all other expenses of this trust, including all moneys advanced for insuranees, taxes and other liens or assessments, with interest thereon at seven per cent per annum, then to pay the principal of said notes, whether due and payable by the terms thereof, or the option of the legal holder thereof, and interest due on said notes up .to the time of such sale, rendering the overplus, if any, unto the said party of the second part.\nIt is agreed that said grantor shall pay all costs and attorneys\u2019 fees incurred or paid by said grantee, or the holder or holders of said notes, in any suit in which either of them may be plaintiff or defendant, by reason of being a party to this trust deed, or a holder of said notes, and that the same shall be a lien upon said premises, and may be i ncluded in any decree ordering the sale of said premises, and taken out of the proceeds of any sale thereof.\u201d\nThe taxes were not paid until they had become a lien upon the premises, the removal of which lien was within the power of appellees for the protection of their security. Brown v. Miner, 21 Ill. App. 60; same case, 128 Ill. 148.\nA default which had not occurred\u2014failure to pay taxes\u2014 could not be alleged in the bill. When such default happened, it was not necessary that a supplemental bill, setting this up, should be filed. Brown v. Miner, 21 Ill. App. 60.\nThe allegations of the bill regarding the trust deed were \u00a1sufficient to make the trust deed a part of the bill, for the purpose of permitting appellees to make proof of payment \u00a1of taxes pendente lite.\nIn equity, relief will not be denied, because of mere vari\u2022ance, unless the case stated and the case found are so materially variant as to prevent a decree in favor of the complainant. 1 Barton\u2019s Ohy. Pr. 260.\nIn stating deeds or other written instruments in a bill, it \u2022is usual to refer to the instrument itself, in some such words as the following, namely: \u201c as by the said indenture, when produced, will appear.\u201d The effect of such reference is to make the whole instrument referred to part of the record. 'The effect of referring to it is to enable the plaintiff to rely upon every part of the instrument, and to prevent his being precluded from availing himself, at the hearing, of any portion, either of its recital or operative part, which may not be inserted in the bill. Thus it seems that a plaintiff may, by his bill, state simply the date and general purport of anv particular deed or instrument under which he claims, and that such statement, provided it is accompanied by a reference to the deed itself, will be sufficient. 1 Daniell\u2019s Oh. PI. & Pr. (6th Am. Ed.) p. 369; Swetland v. Swetland, 3 Mich. 482.\nThe solicitor\u2019s fee allowed was shown to be reasonable, and was properly included in the decree. Telford v. Gar. rels, 132 Ill. 555.\nIn the present case, the trust deed directly authorizes such inclusion.\nThe payment of the taxes was for the benefit of appellant, and the decree for solicitor\u2019s fees only what he stipulated for. The decree of the Superior Court is affirmed.",
        "type": "majority",
        "author": "Mr. Justice Waterman"
      }
    ],
    "attorneys": [
      "Samuel J. Lumbard, attorney for appellant.",
      "Schintz & Ives, attorneys for appellees."
    ],
    "corrections": "",
    "head_matter": "Solomon Loewenstein v. Leland S. Rapp and Lillian M. Rapp.\n1. Equity Pleading\u2014References to Instrument Relied Upon.\u2014If a plaintiff, by his bill, describes and gives the general purport of any instrument under which he claims, and refers to such instrument in support of his claim, the effect of such reference is to make the whole instrument referred to, when produced, a part of the record.\n2. Equity Practice\u2014Decree for Taxes Paid Pendente Lite.\u2014In a suit to foreclose a mortgage, it is proper to allow the complainants for money advanced for the payment of taxes, after the filing of the bill under the prayer for general relief; the contingencies which would justify such payment having been set forth in the bill.\n3. Variance\u2014In Equity.\u2014in equity, relief will not be denied because of mere variance, unless the case stated and the case found are so materially variant as to prevent a decree in favor of the complainant.\nForeclosure of Mortgage.\u2014Appeal from the Superior Court of Cook\nCounty; the Hon. John Barton Payne, Judge, presiding.\nHeard at the October term, 1896.\nAffirmed.\nOpinion filed January 7, 1897.\nStatement of the Case.\nThis suit was to foreclose a trust deed upon certain premises in Cook county, Illinois.\nBy his trust deed, dated February 21,1894, appellant conveyed the premises in question to Albert H. Adams, as trustee, which trust deed recited an indebtedness of $3,750, evidenced by three notes, each for $1,250.\nIn the decree of foreclosure, the lower court has included two items to which appellant takes exception, viz., an item of $67.92 for taxes and assessments upon the premises, paid venciente lite by appellee; second, $100 for solicitor\u2019s fees in the foreclosure suit. Objection to the allowance of these items was made by the appellant before the master, and renewed by exceptions filed to his report, and appellant now submits to the consideration of this court the propriety of the decree in these regards.\nSamuel J. Lumbard, attorney for appellant.\nSchintz & Ives, attorneys for appellees."
  },
  "file_name": "0678-01",
  "first_page_order": 676,
  "last_page_order": 679
}
