Public-domain · open source
OpenJurist

167 Ill. 293

Fuller v. Brown

Illinois Supreme Court

Decided May 11, 1897

Illinois Supreme Court · decided 1897-05-11

<p>1. Upon the point as to when a grantor in a trust deed, which contains a provision for the payment of a reasonable attorney’s fee out of the proceeds of the foreclosure sale in case such foreclosure is necessary, becomes liable for the payment of such fee, the opinion follows the decisions in Cheltenham, Improvement Co. v. Whitehead, 128 Ill. 279, and Heffron v. Gage, 149 id. 182.</p> <p>2. Tender—tender after commencement of foreclosure suit should include a reasonable attorney's fee. Tender by a mortgagor after suit begun to foreclose, to be effective, should include an offer to pay reasonable attorney’s fees already earned, where the mortgage provides for the payment of a reasonable attorney’s fee, in the event of foreclosure, out of the proceeds of the foreclosure sale.</p>

Relies on Cheltenham Improvement Co. v. Whitehead

Good law ✅— No negative treatment on recordhow we know

Decided 1897-05-11

How this case has been cited

Cited by 3 later decisions — most recently July 1910

3 state decisions

10189719001910decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Mr. Justice Cartwright

¶1delivered the opinion of the court:

¶2Appellee, who was the holder of promissory notes, secured by a trust deed, executed by Zura Fuller and Frances M. Fuller, his wife, filed a bill to foreclose the trust deed, and prayed for an allowance of solicitor’s fees as provided therein. Oakford & Fahnestock, a corporation, and Aaron S. Oakford, were also made parties defendant under an averment that they had or claimed some interest in the mortgaged premises. They answered, admitting all allegations of the bill but disputing the right to a solicitor’s fee, and averring that after the suit was commenced they had tendered to the complainant the amount due on the notes and trust deed for principal and interest, together with the costs of suit, and this tender they brought into court. The cause was referred to the master, and it was admitted before him that the entire amount due, not including any solicitor’s fee, had been tendered as alleged and deposited with the clerk of the court. Testimony was taken showing that §75 would be a reasonable fee for complainant’s solicitor, and the master reported that complainant was entitled to a decree of foreclosure for the amount found due for principal and interest, and also for said solicitor’s fee and costs of the suit. Exceptions to the allowance of the solicitor’s fee were overruled, and a decree of foreclosure was entered accordingly, which has been affirmed by the Appellate Court.

¶3The agreement of the parties with respect to the solicitor’s fee, the condition under which it should be allowed and the manner of payment is the same in this case as in the cases of Cheltenham Improvement Co. v. Whitehead, 128 Ill. 279, and Heffron v. Gage, 149 id. 182, except that the stipulation is for a reasonable fee, while in one of those cases it was for five per cent of the amount due and in the other for §1000. The decisions in those cases must control in this.

¶4The bill had been filed and reasonable fees to that extent had been earned when the offer to pay was made, and there was no offer to pay such reasonable fee so earned. If the defendants desired to make payment of the amount then due, so as to avoid further cost and expense, they should have offered to pay a reasonable fee for the service already performed.

¶5The judgment of the Appellate Court will be affirmed.

¶6Judgment affirmed.

/167/ill/293 · .json · Public domain