Barnett v. Davenport

Appellate Court of Illinois

Barnett v. Davenport

40 Ill. App. 57, 1891 Ill. App. LEXIS 20

DecidedSeptember 11, 1891

StatusPublished

This text of 40 Ill. App. 57 (Barnett v. Davenport) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barnett v. Davenport, 40 Ill. App. 57, 1891 Ill. App. LEXIS 20 (Ill. Ct. App. 1891).

Pincite

Opinion

Sample, J.

The only error assigned is the allowance of an attorney’s fee in the decree of foreclosure. The mortgage provided in effect that if suit was commenced to foreclose the mortgage, then ten per cent of the amount found to be due should be included in the same decree, for attorney’s fees. The appellants insist that the attorney’s fee did not become due until after the suit was actually begun, and therefore could not be included in the decree; and the case of Nickerson et al. v. Babcock, 22 Ill. 497, is cited in support of this view. It will be observed that the agreement in the mortgage expressly provides that the attorney’s fee should be included in the same decree. There was no such provision in the note in the Hickerson case. In the case of McIntire v. Yates et al., 104 Ill. 503, the court uses this langnage : “The mortgage in this case contained a provision that in case of foreclosure two per cent of the amount found due on the mortgage indebtedness should be allowed in the decree, as a solicitor’s fee. The court allowed this amount in the decree of foreclosure and it is said the decree in this regard is erroneous. This case can not be distinguished from Clawson v. Munson, 55 Ill. 395, where a similar question arose, and the court held that a decree for an attorney’s fee under a mortgage like the one under consideration was proper. See, also, Haldeman v. M. M. L. Ins. Co., 120 Ill. 390.

The attorney’s fee was properly included and the decree will be affirmed.

Decree affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Sample, J.

The only error assigned is the allowance of an attorney’s fee in the decree of foreclosure. The mortgage provided in effect that if suit was commenced to foreclose the mortgage, then ten per cent of the amount found to be due should be included in the same decree, for attorney’s fees. The appellants insist that the attorney’s fee did not become due until after the suit was actually begun, and therefore could not be included in the decree; and the case of Nickerson et al. v. Babcock, 22 Ill. 497, is cited in support of this view. It will be observed that the agreement in the mortgage expressly provides that the attorney’s fee should be included in the same decree. There was no such provision in the note in the Hickerson case. In the case of McIntire v. Yates et al., 104 Ill. 503, the court uses this langnage : “The mortgage in this case contained a provision that in case of foreclosure two per cent of the amount found due on the mortgage indebtedness should be allowed in the decree, as a solicitor’s fee. The court allowed this amount in the decree of foreclosure and it is said the decree in this regard is erroneous. This case can not be distinguished from Clawson v. Munson, 55 Ill. 395, where a similar question arose, and the court held that a decree for an attorney’s fee under a mortgage like the one under consideration was proper. See, also, Haldeman v. M. M. L. Ins. Co., 120 Ill. 390.

The attorney’s fee was properly included and the decree will be affirmed.

Decree affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

40 Ill. App. 57, 1891 Ill. App. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnett-v-davenport-illappct-1891.

Opinion

Related

Cite This Page — Counsel Stack