majority">Mr. Presiding Justice Adams

delivered the opinion of the court.

Appellants’ counsel contend that the time fixed by the decree of March 22,1905, for a sale, is not an advantageous time at which to sell the premises in question, and rely on the evidence and the provision in the Ingraham-Cooper agreement, viz: “ It is also mutually agreed to sell said lands whenever regarded as most advantageous to both parties,” We do not understand counsel to contend that the land cannot be sold until such time as all the parties in interest shall agree, but merely that, in view of the contract, there cannot be a sale until such time as it may be mutually advantageous, and counsel use the word “ advantageous,” in the sense of profit to the parties, or at least, no loss. In this sense, the evidence clearly shows that if the land should have been sold at the time decreed, there would have been great financial loss to both parties, and the master, whose report was confirmed, found that according to the estimate of value given by the witnesses, there would be a loss to both parties. If, therefore, the premises are, by the agreement, not to be sold until such time as the sale will bring profits to the parties, the decree is erroneous. But we do not think that the word “ advantageous ” is necessarily to be understood as referring solely to profits. If parties interested in real estate are continuously losing money on their investment, by decrease in value of the property and the payment of taxes and special assessments and loss of interest, so that they are continuously growing poorer by reason of holding the property, it may be greatty to their advantage to sell the property, in order to stop the loss which the holding of it entails. The evidence shows that both parties have suffered great financial loss by withholding the premises from sale. Counsel for appellants rely on the following language in the opinion in Ingraham v. Mariner, 194 111. 286, between the same parties: “Section 6 of the contract provides'as follows: ‘It is also mutually agreed to sell said lands whenever regarded as most advantageous to both parties.’ This amounts to an implied understanding that the property should be sold when both parties should regard it as advantageous to sell it, and is inconsistent with the idea that there should be a partition of the land itself between the parties.” This was said in reference to'a claim of the complainants in the cause that partition should be made of the land in question, as the contest shows, and not at all as an intimation that the land could not be sold till such time as both parties should deem it most advantageous to sell, and should so agree. In the same opinion the court sav: “Cooper certainly-had a beneficial interest in the proceeds of the land, and that interest would attach to the net profits arising upon the sale of the property. His interest in the proceeds and the profits constituted a lien or charge upon the land, so that appellees had a right to file a bill to compel a sale.” This is said, noth withstanding section 6 of the agreement quoted in the opinion. The decree of July 6, 1900, which has been affirmed by the Supreme Court, contemplates a sale, in case of non-agreement, on application by either .of the parties. Appellants’ counsel say that the appellees, in seeking a sale, have no intention to procure the sale of the interest of the Ingraham estate, that their real motive is to eliminate the interest of appellants, which, by bidding $30,000 and costs and becoming the purchasers, they may do, under the terms of the decree. The decree is equal as between the parties. Appellees may bid at the sale, and, if they should be the highest bidders, they may become the purchasers, and thus eliminate the interest of the Ingraham estate.

Counsel for appellants object that the decree of March 22, 1905, is erroneous, in not requiring appellees, in case of purchase by them, to pay more than $30,000 in cash, and the cost of sale, and that the master accept from them receipts for what may appear to be due them in lieu of money; that such an order could only be proper after an accounting, and it must be assumed that a larger bid than $30,000 and cost of sale may be made; and that the decree is also erroneous in changing the terms of the decree of 1892, so that the purchaser might, at his option, pay all or any part of the deferred payments in cash, within the time fixed by the decree. The $30,000 is a lien on the land and must first be paid, in any event, if the land sells for so much, and if for less, then the proceeds, less the cost of sale, must be so applied, and, therefore, no accounting is necessary so far as the encumbrance of $30,000 is concerned. In Mariner v. Ingraham, supra. the court say: “ In order to determine the amount of profits, which are to be divided between these parties, there should be deducted from the proceeds of the sale, first, the principal of the mortgage, amounting to $30,000, and the current interest due thereon between the maturity of the last installment of interest and the date of the sale,” etc. As to that part of the decree requiring the master to accept the receipts of appellees for what may be due them, in the event they become the purchasers, it is sufficient, as we think, to say that if appellees should become the purchasers, and the proceeds of the sale should be such as to pay profits, after making the deductions directed by the court in the opinion in Ingraham v. Mariner, supra, and an account should then appear necessary, the account could be taken for the purpose of determining the amount due to appellees for which their receipts should be taken, in lieu of cash, on their bid.

In view of the directions of the court in Ingraham v. Mariner as to the deductions which should be made from the proceeds of the sale, in order to ascertain profits, if. any, and the provision in section 7 of the agreement that the profits are to be equally divided between the parties, each to have half, the statement of an account between them would be a mere matter of computation.

We do not think the decree erroneous in providing that a purchaser may, if he chooses, pay the amount of his bid in cash. The rule is that when the finding of a master has been approved by the chancellor, the finding will not be disturbed unless manifestly against the weight of the evidence. Siegel v. Andrews & Co., 181 Ill. 350, 356.

We cannot say that the finding is manifestly against the weight of the evidence.

The appellees have assigned as cross-error that the decree is erroneous in providing that the master shall pay over to Mariner and Underwood the amount of said $30,000 encumbrance on confirmation of the sale. We think this in accordance with the opinion in Ingraham v. Mariner, 194 Ill. 269, 283, and, -therefore, cannot sustain the assignment.

A motion of appellees to dismiss the appeal was reserved till the hearing. The motion will be overruled.

The decree will be affirmed.

Affirmed.

Citation profile

Relationships

How this case has been treated — in progress