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properly neglect for an unreasonable length of time to proceed to condemn the alley (if it is private property) and to enter upon the work of making the improvement provided for by the ordinance, not having abandoned it the appellee could, through the medium of the writ of mandamus, compel the city to proceed to condemn the alley and complete the improvement. (Webster v. City of Chicago, 83 Ill. 458.) Therefore it is clear the fact, if true, the city, in the case at bar, had not acquired the title to the alley in question, presented no defense to the application for judgment and order of sale.
It is proper we should remark this contention arose prior to the enactment of section 53 of the act of the General Assembly entitled "An act concerning local improvements," approved June 14, 1897, in force July 1, 1897.
The judgment of the county court must be reversed and the cause remanded.
Reversed and remanded.
PHILIP GEUDER, Exr, et al.
171 362 820 157 171 362 181 458 171 302
86a 630 171 362) 101a 1386 171 362 205 1610 206 2488 106a 1 85 106a 1170 e107a3228
Opinion filed February 14, 1898.
1. PLEADING-equily-allegations, proof and decree must correspond. The averments of a bill, the proof and the decree must correspond, and a decree cannot grant relief which would be warranted by the evidence where there are no averments in the bill to which the evidence can be applied.
2. SAME-where evidence disproves bill, complainant cannot have relief on other grounds. Where the evidence disproves the case made by the bill the complainant cannot be given a decree upon other grounds disclosed by the proofs, unless he is permitted to amend his bill to conform to the case disclosed by the evidence.
3. FORECLOSURE-uchen complainant is not entitled to a foreclosure. In the absence of amendment, a complainant is not entitled to a foreclosure decree on a bill alleging default in payment of prin
cipal and all interest, where the proof shows that all interest was paid until the principal became due, that two extensions of time were granted thereon on sufficient consideration, the last of which had not expired at the filing of the bill, and that only one installment of interest was then due.
Dorn v. Geuder, 70 Ill. App. 411, reversed.
APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. 0. H. HORTON, Judge, presiding:
This was a bill in chancery filed on the 20th day of April, 1895, by the appellee Philip Geuder, as executor of the last will and testament of Johann Geuder, deceased, and Edward S. Dreyer, trustee, against Gay Dorn, the appellant, and his wife and others, for the foreclosure of a certain trust deed. The bill alleged "that on March 3, 1890, Gay Dorn, for value received, made his one principal promissory note of that date, and thereby promised to pay to the order of Emil Dickmann the sum of six thousand dollars ($6000) in three years after said date, with interest at the rate of six per cent per annum, payable semi-annually, said several installments of interest being evidenced and secured by six interest notes or coupons executed by said Gay Dorn to the order of said Emil Dickmann, each for the sum of one hundred and eighty dollars ($180), which were due, respectively, in six, twelve, eighteen, twenty-four, thirty and thirty-six months after the date thereof, both principal and interest to bear interest at the rate of eight per cent per annum after maturity, and payable at the banking office of E. S. Dreyer & Co., Chicago, Illinois; that said notes were afterwards endorsed by said payee, Emil Dickmann, and delivered to Johann Geuder, who became the legal holder and owner thereof, and so remained up to the day of his death, to-wit, August 11, 1894; that to secure the payment of the said notes the said Gay Dorn executed and delivered to
complainant Edward S. Dreyer, trustee, a deed of trust of even date with said notes, thereby conveying to said trustee, in fee simple, the following described real estate, with all the buildings and improvements thereon, to-wit: (Here follows description of mortgaged premises;) that said principal note was given to evidence, and said trust deed to secure, the balance of the purchase money for the property above described, together with interest thereon for said period of three years; that it is provided in said trust deed that if default be made in the payment of the said notes or the interest thereon, or any part thereof, or in case of waste or non-payment of taxes or assessments, or neglect to procure or renew insurance, or in case of the breach of any of the covenants therein contained, then the whole of the principal of said notes shall thereupon, at the option of the legal holder thereof, become imme. diately due; that default has been made in the payment of the principal sum of said note, together with a large amount of interest thereon; that there is now due the whole of the principal of said notes, being the sum of six thousand dollars ($6000), with interest thereon from March 3, 1890." The bill also alleged the trust deed contained an agreement to pay solicitor's fees of the complainants' solicitor in case of a foreclosure, and that the other parties defendant claim some interest in the mortgaged premises, and concluded with a prayer that a decree be entered foreclosing the trust deed and for sale of the property, and for a decree in personam for any deficiency, and for such other and further relief as the nature of the case might require.
The appellant filed an answer to the bill, alleging payment of each of the said six interest notes or coupons mentioned in the bill, and that by agreement between the parties the time of the payment of the principal indebtedness was extended for the term of one year, to-wit, to the 3d day of March, 1894, in consideration of the payment by appellant of the sum of $60 as a bonus
for said extension, and the execution by the appellant of two interest notes for the payment of the interest semiannually upon the said principal sum for the period of time to which payment of the said principal note was so extended; that appellant paid both of said last mentioned two interest notes or coupons, and that on or about the said 3d day of March, 1894,—the date to which the said principal note was extended by the said agreement,--the parties again agreed that, in consideration of the sum of $120 paid by the said appellant, the time of the maturity of the said principal debt should be and was extended for the further term of three years, until, to-wit, March 3, 1897; that the appellant executed and delivered to the complainants his certain six notes or interest coupons for the semi-annual interest to accrue upon the said principal sum for and during the time to which, by the said agreement, the maturity of the principal sum was extended; that said appellant paid the interest for the said period of six months evidenced by the first of said interest or coupon notes, and said first note was delivered to him; that the second of said last mentioned interest notes fell due under said agreement on the said 3d day of March, 1895, and that by a further agreement between the parties, based upon a sufficient consideration, it was agreed that for the convenience and accommodation of the complainants the appellant would endeavor to negotiate a loan from other parties of a sufficient amount to discharge the principal sum (which, aside from the said last mentioned agreement, would not mature until March 3, 1897,) and the interest coupon which fell due March 3, 1895, and that while he was in good faith endeavoring to negotiate said loan, complainants, in violation of the agreement, filed the bill for foreclosure. The answer contained other averments, which, in the view we take of the case, need not be adverted to.
To this answer the complainants filed a general replication, averring that the allegations of their bill of com
plaint were true, and that they would aver, maintain and prove the same to be true, and that the answer of the appellant was uncertain, untrue and insufficient.
The issue thus raised by the bill, answer and replication was referred to the master to take proof, and report his conclusions of both law and fact. The proofs were taken and the report of the master filed. The substance of the report of the master was, that the allegations of the appellant that the time of the maturity of the principal note had been extended to March 3, 1897, were sustained by the proofs, and that the appellant had paid the interest coupons mentioned in the bill, and also each of the interest notes or coupons afterwards executed by and in pursuance of the agreements extending the time of the payments of the principal sum, except the interest note or coupon due on the 3d day of March, 1895. As to the allegations of the answer as to an extension of the time of the payment of the interest note which fell due March 3, 1895, the report of the master is as follows: "I find from this evidence that no agreement for an extension on the said March 3, 1895, coupon was made; that the language testified to by Dorn is too indefinite to constitute an agreement for an extension; that Dorn fails to show that at any time he had any substantial negotiations pending for the procurement of the principal, and as no definite time is stated by Dorn to which said note was extended, it was an assumption on his part, which was not justified by the language, that the time of payment of the interest was extended. I therefore conclude that complainants had a right to declare the principal due for non-payment of the interest due March 3, 1895.” The master found and reported that said interest coupon falling due March 3, 1895, was paid by the appellant to the appellee executor on the 25th day of May, 1895, which was a little over a month after the filing of the bill herein.
Appellant filed exceptions to the findings of the master as to the facts relative to the alleged agreement