Brosius v. Madsen

17 N.E.2d 229, 297 Ill. App. 94, 1938 Ill. App. LEXIS 634
CourtAppellate Court of Illinois
DecidedOctober 26, 1938
DocketGen. No. 40,093
StatusPublished

This text of 17 N.E.2d 229 (Brosius v. Madsen) 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
Brosius v. Madsen, 17 N.E.2d 229, 297 Ill. App. 94, 1938 Ill. App. LEXIS 634 (Ill. Ct. App. 1938).

Opinion

Mr. Justice Hebel

delivered the opinion of the court.

This in an appeal by Earl L. Weinstock and Adeline M. Weinstock from a decree of foreclosure entered on May 12, 1937, sustaining objections to the master’s report and finding these defendants to be personally liable for the amount of any deficiency which may be shown after sale, and from the decree entered on December 29, 1937, overruling objections to the judicial sale and entering a personal deficiency judgment against the named defendants.

On September 18, 1934, the plaintiff, Anna Brosius, exhibited her complaint to foreclose the trust deed herein involved. It appears from the allegations of the complaint that the defendants appealing did after the execution of the trust deed in question, convey the real estate involved to Carl 0. Madsen and Tina Mad-sen; that on December 16, 1929, an extension agreement was made' and executed by Carl 0. and Tina Madsen, by the terms of which the maturity of the indebtedness was extended, and that they did assume and agree to pay the debt; that subsequently, on December 16, 1932, the maturity of the indebtedness was again extended by an agreement made and executed by Carl 0. and Tina Madsen, and that they again assumed and agreed to pay the indebtedness, and the plaintiff in the foreclosure proceeding prays that a personal deficiency be decreed against the defendant or defendants personally liable therefor.

The trust deed, the subject of this foreclosure proceeding, conveys the real estate involved subject to a condition of defeasance from the mortgagors, Earl L. Weinstock and Adeline M. Weinstock, to Max K. Meyer, as trustee, and provides: ‘ ‘ That the grantors covenant and agreed to pay said indebtedness and the interest thereon as herein and in said note provided, or according to any agreement extending time of payment. ’ ’

The defendants, Earl and Adeline Weinstock, thereafter exhibited their appearance and answer in which they allege two extensions of -the indebtedness without their knowledge or consent and the assumption of the debt by their grantees, Carl O. and Tina Madsen; that Carl 0. and Tina Madsen filed their joint answer, and the cause was referred to a master in chancery of the circuit court to consider such evidence as might be presented in support of the complaint and the answer thereto. After a hearing of the evidence submitted to the master, he prepared and filed his report in which he found that the defendants, Earl L. Weinstock and Adeline M. Weinstock, conveyed their fee simple title to the real estate to Carl 0. and Tina Madsen, who did procure two extensions of the maturity of the indebtedness, and, by agreement, had assumed and agreed to pay the mortgage debt.

The master further found the parties stipulated that Carl 0. Madsen if present would testify these defendants had no knowledge of the extensions, and further found in his report that by virtue of the conveyance by these defendants to the Madsens, and the execution of the extensions without the knowledge or consent of these defendants and the assumption of the debt by the Madsens, these defendants, Earl L. Weinstock and Adeline M. Weinstock, have been released from liability to the plaintiff.

Objections were filed by the plaintiff to the master’s report, which were overruled by the master and allowed to stand as exceptions before the court. Upon due consideration, the court sustained the exceptions filed to the master’s report, and a decree of foreclosure and sale was entered on May 12, 1937, decreeing these defendants, Earl L. Weinstock and Adeline M. Weinstock, to be personally liable for any deficiency which may be shown to exist after sale. A sale was had pursuant to said decree on November 2,1937, resulting in a deficiency in the aggregate sum of $3,553.58.

Objections filed by these defendants to the sale and report of sale were, by order of court of December 29, 1937, overruled. A decree was entered approving the master’s report of sale and distribution, and the court entered a deficiency decree against the defendants Earl L. Weinstock and Adeline M. Weinstock, and also Carl O. and Tina Madsen, and it is from this decree and the decree of foreclosure and sale that the defendants Earl L. Weinstock and Adeline M. Weinstock, have prosecuted this appeal.

The contention of the defendants is that the relationship of the parties to this cause is analogous to an express suretyship agreement and the agreements extending the time of payment of the mortgage indebtedness by the mortgagee with the mortgagors’ grantees without their knowledge or consent discharge the mortgagors from their liability to the mortgagee.

The liability assumed by the mortgagors when they signed the trust deed depends largely on the words used in the instrument. At the time the mortgagors executed the trust deed, as we have already pointed out, it provided among other provisions relating to the transaction that — “The grantors covenant and agree to pay said indebtedness and the interest thereon as herein and in said note provided, or according to any agreement extending time of payment.”

The words used in the agreement did not restrict the extension of the mortgage loan, and by such restriction relieve the defendants, Earl L. Weinstock and Adeline M. Weinstock as the makers of the notes when they conveyed the title to the real estate, which was security, as evidenced by the trust deed executed by the makers at the time the deed was delivered.

This very question has been passed upon by courts of appeal, and one of the cases that has been considered by the Appellate Court is that of Kent v. Rhomberg, 288 Ill. App. 328, which involved a trust deed, containing an agreement on the part of the mortgagor, in which the phraseology is somewhat similar to the language of the trust deed involved in this case, and in passing upon the questions called to the attention of the Appellate Court, we said:

“We are of the opinion that the reasoning in the case from which we have just quoted is applicable to the cause here on appeal. There is no language which limits or qualifies the extension of time of payment in the trust deed in question, but the words used are very broad when it appears from the trust deed that the time of payment of the indebtedness may be extended according to any agreement which might be entered into for that purpose. The language not alone applies to an extension agreement that might have been had between the plaintiff and the defendants, but applies equally well to the extension agreement entered into between the plaintiff and Williams, the successor to title of the defendants by their deed.”

From an examination of the opinion of the court, it is apparent that the language of the trust deed does not limit the number of extensions or the time when an extension agreement might be had between the plaintiff in this case and the successor in title to the defendants.

In the case of Continental Nat. Bank & Trust Co. v. Reynolds, 286 Ill. App. 290, the court considered the necessary construction to be given the words as used in the trust deed.

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Bluebook (online)
17 N.E.2d 229, 297 Ill. App. 94, 1938 Ill. App. LEXIS 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brosius-v-madsen-illappct-1938.