Soles v. Sheppard

Citations

• 99 Ill. 616
• 1881 Ill. LEXIS 217

Syllabus

<p>1. Attorney’s pee — consideration for stipulation in mortgage to pay. A stipulation in a mortgage to pay a reasonable sum for the complainant's solicitor’s fee in case of a foreclosure or bill filed for that purpose, to be included ^eoree’ ^ intended as a gratuity, is without consideration; and if a cover for usury, is prohibited by the statute; and if intended to indemnify the mortgagee against the expenses of foreclosing, it will not embrace unnecessary and useless services of a solicitor, however extensive or laborious.</p> <p>^ere a MU is filed to foreclose a senior mortgage, making the junior mortgagee a party, no bill or cross-bill, or even an answer, being necessary to protect the interests of the latter and allow him to participate in the distribution of the surplus, a solicitor’s fee should not be allowed to the mortgagee in the junior mortgage for filing a cross-bill, under a stipulation in the mortgage to pay the same in case of a foreclosure.</p> <p>3. Chancery — cross-bill not necessary by junior mortgagee on foreclosure of prior mortgage. In foreclosing a mortgage, where junior mortgagees and incumbrancers are parties defendant, a cross-bill is unnecessary unless some affirmative relief other than a foreclosure is sought. The foreclosure of the prior mortgage affords relief to all subsequent incumbrancers who are made parties, as they have the right to participate in the distribution of the surplus.</p> <p>4. Foreclosure — practice as to junior mortgagees. A junior mortgagee, when a party to a bill to foreclose a prior mortgage, may, by mere motion, without an answer or cross-bill, have his claim referred to the master to hear evidence and report the sum due him.</p> <p>5. Mortgage — stipulation as to attorney’s fee construed. A provision in a mortgage, that in case of a foreclosure or a bill filed for that purpose, a reasonable sum for a solicitor’s fee, to be fixed by the court, shall be included in the decree, will not embrace the case of filing