Brown v. Kennicott

30 Ill. App. 89, 1888 Ill. App. LEXIS 225

• Court: Appellate Court of Illinois
• Decided: January 16, 1889
• Status: Published

Opinion

Gary, J.

This was originally two cases in the Circuit Court, in which Mrs. Kennicott was the complainant. The hills were filed to foreclose two trust deeds, made hy Ira Brown and his wife, the plaintiff in error, each to secure the payment of a separate note of Ira Brown, and in which there were different trustees. Each bill alleged that the plaintiff in error had, or claimed some interest in the premises, but stated nothing showing any personal liability by her to pay the debts.

The court ordered “that said cause be consolidated and tried and treated hereafter as one ease.” As the trustees were only nominal parties, having no beneficial interest, the plaintiff in error had no reason to complain of this order. It did her no injury. Stearns v. Cope, 109 Ill. 340; Aulger v. Clay, 109 Ill. 487. But the decree consolidated the debts, and directs that the premises described in both deeds be sold for the payment of the whole, and that if the moneys from the sale should be insufficient to pay the amount, Ira Brown and the plaintiff in error pay Mrs. Kennicott the amount of the deficiency, and that she have execution therefor.

This decree does not give relief upon the contract of the parties, but makes a new one. The debt secured by one trust deed was no incumbrance upon the premises described in the other. It is easy to imagine that if each parcel had been subjected only to its own burden it might have been in the power of the owners of the equity to have made negotiations for their relief, which the accumulated load would prevent Blazey v. Delius, 74 Ill. 299; Griesbaum v. Baum, 18 Ill. App. 614. And as the bills contained no allegations of facts which would make the plaintiff in error personally liable for the debts, a decree against her for the deficiency was not warranted under the general prayer, even though the evidence did show such personal liability. Rowan v. Bowles, 21 Ill. 17; Kellogg v. Moore, 97 Ill. 282; Johnson v. Foreman, 16 Ill. App. 632. The decree is reversed and the cause remanded.

Reversed and remanded.

On motion of defendants in error, the opinion heretofore filed is added to as follows: The record shows that in the master’s report the amount due on each incumbrance is separately stated, so that the data is in the record upon which to base a correct decree. The case is therefore remanded, with directions to the Circuit Court to enter a decree with separate clauses for the sale of the premises included in the respective trust deeds, to satisfy the amounts due upon them respectively, and without any personal decree for the deficiency against the plaintiff in error.