Court Record of McConnel vs Holobush

Source: Reports Of Cases Illinois
Written: 1849

Murray McConnel v. Thomas Holobush, Augustus R. Burbank and Holoway W.
Vansyckle.(1)

Error to Pike.

1. Mortgagee — in, possession — rents and profits. A mortgagee who enters upon
the mortgaged premises for condition broken, must account for the rents and
profits actually received, or which might have been received by reasonable
care and prudence. (2) These must be credited as so much paid upon the
mortgage, from year to year; first in extinguishment of the interest, and then
of the principal.(3)

2. Same — care of estate. A mortgagee in possession is authorized, and even
bound, to lay out money to keep the estate in necessary repair, and to
preserve jt; but he is not authorized to make new improvements, and tack the
expense to the amount due upon the mortgage, or pay it out of the rents and
profits; except under extraordinary circumstances.(4)

3. Same — subsequent purchaser. Where improvements are made in good faith, by
a party who believed he had made a valid purchase of the premises, and the
expenditure was a judicious one for the benefit of the estate, such party may
be allowed for them.

4. Practice in chancery — impertinent matter. Where a bill or answer is not
pertinent, or unnecessarily reflects upon the opposite party, such portions of
it should be stricken out, at the cost of the solicitor so offending.

5. Same — scandalous matter. Only material facts, clearly and succinctly set
forth, should be stated, either in a bill or answer, and neither suitors nor
solicitors should be allowed to manifest their personal feelings upon the
records of the court. (5)

On the 7th day of July, a. D. 1849, Murray McConnel filed his bill of
complaint in the Pike circuit court, representing that one Mark W. Delahay, on
the 18th of September, 1839, purchased of John Manchester the property known
as the Naples ferry, together with certain lands described in the bill, which
were conveyed to him by deed, duly acknowledged, etc., for $9,000. That on the
11th day of October, 1839, one John Matthews, one of the defendants, then
having or expecting to have some interest in said land and ferry, for the sum
of $3,000, sold and conveyed the same to said Delahay. That on the said 11th
day of October, Delahay being indebted to said John Manchester, in the sum of
$2,700, due twelve months thereafter, secured the same by a mortgage upon said
land, (not including the ferry) which mortgage was duly executed, etc. That
afterwards, to wit, on the 14th day of February, 1840, said Delahay, for the
sum of $2,200 — $200 to him in hand paid, sold and conveyed the said land and
ferry to said McConnel, by deed, etc., and gave him possession. That the said
John Manchester was indebted to one William McKee, executor of Jesse McKee,
deceased, and on or about the 10th of January, 1843, said McKee, as executor,
filed a creditor's bill in the Pike circuit court against the said John
Manchester, John Matthews and others, the object of which bill was to subject
the debt due from Delahay to Manchester, to the payment of the debt due from
Manchester to McKee, executor, etc., and to sell the interest said John
Manchester had in the lands, through and by virtue of said mortgage from
Delahay to Manchester, to pay the debt due from Manchester to McKee. In that
suit such proceedings were had as that, on the 8th of April, 1848, a final
decree was had in favor of McKee, executor, directing the payment to him of
the sum of $2,617 93, within ninety days, and that in default of such payment,
the said land, or so much thereof as would be sufficient to pay the said debt,
should be sold.

McConnel sets up that he is the owner of said land and ferry, subject only to
the said mortgage from Delahay to Manchester, and that the object and
intention of his bill is to be permitted to redeem said land from said
mortgage. With that view he was ready to pay said McKee the amount of said
decree, but that upon application to McKee for that purpose, he informed him,
McConnel, that he, McKee, had no interest in said decree, but that he had sold
all his interest therein to John Matthews, Thomas Holobush and Augustus R.
Burbank, and that he, McKee, would not receive said money. That McConnel was
then informed by D. A. Smith, solicitor for said Matthews, Holobush and
Burbank, that they would not receive said money; that they denied the right of
McConnel to pay said money or to redeem said land from said mortgage; but said
Matthews, Holobush and Burbank claimed as purchasers from said McKee, that
they had a right to sell said land and ferry to raise the money decreed to be
paid, and that they should do so, without regard to McConnel's rights. That
the said John Manchester and his wife are dead, and that the said John
Matthews is administrator of said Manchester, and that no others than the said
Holobush, Matthews, Burbank and the estate of the said John Manchester, have
any interest in said mortgage or the money therein secured to be paid. Admits
that the sum of money is due as stated by the decree, but that said parties
are indebted to complainant in a much larger sum, for the rents, issues and
profits arising from said lands and ferry, etc., which should be applied in
satisfaction of that decree. That neither Delahay nor McKee, as executor, have
any interest in said land and ferry. That said Holobush, Matthews and Burbank,
have no interest in said land or ferry, except as they claim under said
mortgage, and that that claim has been extinguished by said use and
occupation. That they retain possession of said land and ferry, and refuse to
account for the profits etc., and insist upon their right to sell the land
under the decree. Prays that he be permitted to pay off the mortgage and
redeem the land etc.; that an account may be taken of said rents and profits
of said land and ferry, and that he be put in possession thereof.

This bill was subsequently amended, alleging the insolvency and pecuniary
embarrassment of Matthews, Holobush and Burbank, and they were enjoined from
selling said land and ferry. Matthews, Holobush and Burbank answer, admitting
the truth of the bill, except as follows: They deny that the deed of the 14th
February, 1846, from Delahay to McConnel, was absolute, but aver that it was
but a mortgage, to secure the payment of a debt of $1,500 or $2,000 due to
him, one Vansyckle, and another. They deny that complainant has any title to
the premises, but admit he might have had, if he had redeemed, in time, but
has not now a right to redeem. They deny that complainant offered to pay
McKee, or that he refused to receive the money. They deny that they are
indebted to the complainant for rents etc., or on any other account. Aver
that, on the 18th June, 1845, McKee sold to John Matthews his interest in the
land and the judgment etc., mentioned in the bill, and on the 25th of June,
1845, he sold two-thirds thereof to the other defendants. That respondents
erected a warehouse on the premises in the fall of 1845, after McKee had
obtained a title to the premises, under the decree against John Manchester,
which was reversed, and before any steps had been taken to procure a reversal
of that decree; which warehouse cost $1,100. They deny that they took
possession of said land and ferry etc., prior to the 18th of June, 1845. They
aver that they purchased of Thomas Manchester his interest in the premises on
the 25th of April, 1848. And that at April term, 1848, McKee, as executor,
obtained a judgment by confession against the defendant, John Matthews, as
administrator of John Manchester, for the use of the defendants, for $980 21
debt and $480 29 damages. That in a suit by complainant against Delahay, to
foreclose his mortgage before referred to, a decree was entered by agreement,
extinguishing his claim against Delahay, and transferring Delahay's title to
the complainant. John Matthews died, and Holobush, as his administrator,
appears and answers. Vansyckle was appointed administrator of John Manchester,
in place of John Matthews, deceased, who appears and answers and admits the
sale to and mortgage from Delahay, as charged in the bill. That no part of
that mortgage was ever paid to intestate or his administrator, and claims the
balance due on the mortgage, after deducting the amount of the decree in favor
of McKee. Does not claim any interest in the land except to secure payment
etc. That the sale by John to Thomas Manchester of the mortgage, and the
foreclosure and purchase by Thomas, were fraudulent and void, and that at the
time of his death, J. Manchester was indebted to others besides McKee, in the
sum of $3,000, and among others to Vansyckle; and in proof of the fraud,
refers to the decree in McKee's case.

The exhibits referred to, and filed with the bill and answers, are not
necessary to an understanding of the opinion.

Proofs were taken of the erection of the warehouse, and of its value, also as
to the annual value of the lands and ferry franchise, and also as to the
solvency of the respondents of the bill. But these proofs are uncertain and
indefinite, and not useful in the examination of the points decided.

On the 22d of Sept., 1849, this suit was heard before Minshall, judge, upon
bill, amended bill, answers thereto and replications, exhibits, depositions
and other proofs, when the injunction was dissolved, and the bill dismissed
with costs.

McConnel, the complainant below, sues out this writ of error.

M. McConnel, pro se, claims: That he stands in the place of Delahay, as to
this mortgage, and has the right to redeem from the same; and is not barred by
the proceedings in favor of McKee against Manchester and others. Hublell v.
The Adm'rs and Heirs of Bradwell, 8 Ohio, 227; Ormsby v. Phillips, 4 Dana,
233; Stapp v. Phillips, 7 Dana, 300; Watson v. Phelps, 20 Wendell, 260;
Henderson v. Stuart, 4 Hawks, 256; Sands v. Frost, 5 Pickering, 267.

Complainant claims the rents and profits from the defendants, upon the ground
that he is the owner of the land, having the right to redeem, and that they
occupy the position of mortgagees in possession of the mortgaged premises, and
bound to pay rent to the mortgagor; first, to be applied to the payment of the
interest yearly, as the same accrued, and then to the payment of the
principal. And, if so applied, the defendants would be indebted to him.
Revised Statutes of 1845, page 93, section 3; 2d U. S. Chancery Digest, 236, §
7, 202, § 19; Tirrel v. Merril, 17th Mass. Rep., 117; Bainbridge v. Owen, 2 J.
J. Marshall, 467; Saunders v. Frost, 5th Pickering, 270; Reed v. Reed, 10th
Pickering, 398; Van Buren v. Olmstead, 5 Paige, from 9 to 18.

The defendants claim compensation for building a warehouse on the premises,
before the commencement of this suit. To which complainant objects, and cites
the following authorities to prove that they should not be paid therefor. 5
Gilman's Rep., Smith v. Sinclair, p. 108; Reed v. Reed, 10 Pickering, 398 to
401.

The complainant admits that the question of costs is within the discretion of
this court, and claims that, owing to the course pursued by the tenants in
possession, in defending this suit, and refusing to account for rents and
profits, they are in duty bound to pay all the costs. Saunders v. Frost, 5
Pickering, 273 and 274.

David A. Smith, for defendants in error: The decree that was rendered at the
April term, 1848, of the circuit court of Pike, in favor of McKee, executor of
McKee, deceased, v. The heirs of John Manchester, deceased, McConnel and
others, was for a sale of all the right, title and interest of the parties to
that suit, of, in and to certain real estate described in the decree, to pay
and satisfy to said McKee, as executor, certain judgments against John
Manchester and others; the said John Manchester having alienated fraudulently
a certain mortgage (the oldest incumbrance on the property in controversy) to
Thomas Manchester, and he having foreclosed the same and bought in the
property on the 18th day of December, 1841. (See master's deed to him 7th
June, 1842, recorded 9th Sept., 1843.) The decree of the 8th of April, 1848,
so extinguished, or rather settled, the subsisting equities of the parties to
the same; that they have no right to go behind the decree, and assert any
equity originating before the decree. If such a course of practice is
tolerated, there will be no end to controversy, and nothing can possibly be
accomplished by a final judgment or decree, in the way of binding the
interests or equities of the parties thereto. McConnel is claiming a right to
redeem from a certain mortgage, and an account of rents and profits, all
dating long before said decree. He does not pretend to assert any equity,
having its origin since the decree. In the teeth of that decree, for the sale
of his interest in the lands in controversy, he says he is the owner of the
lands by virtue of the conveyance dating in 1840, and that he is entitled to
an account of rents and profits of the same since 1843. In what does such a
pretence differ from any case in which the lands of a defendant are to be sold
by judgment or decree of court? Could he be heard to allege against the
execution of such judgment or decree, that he was the owner of the lands, and
entitled to an account of the rents and profits? If so, a plaintiff or
complainant who seeks the execution of a judgment or decree for the sale of
lands to satisfy his demands as a judgment or decree creditor, may travel in a
perfect and perpetual circle, and will never attain his right. Such a
proposition is so preposterous that it only needs to be named, in order to be
condemned, as absurd and unjust to the very last degree.

We have no more right to go behind the decree of April, 1848, to assert any
equity, than the complainant in this case has. On this principle we can not
claim compensation for the warehouse we built in the fall of 1845. But if the
decree of April, 1848, is to be disturbed as to any of its legal consequences,
and against which we protest, and we are to beheld answerable for the rents
and profits since June, 1845, then for every permanent and valuable
improvement to the property, made before the complainant proceeded to reverse
the decree of the September term, 1844, we are, on equitable principles,
entitled to reimbursement for the value of the same; because we made them
after the strife was apparently ended by a decree of the circuit court, in
which all the parties to the same were acquiescing when the improvements were
made.

The improvements that may be made by a party to a suit pendente lite, he has
no right to claim reimbursement for, on the principle, pendente lite nihil
innovitur. No impediments ought to be thrown in the way of a mortgagor, or
those claiming under him, when the right to redeem is properly asserted. If a
mortgagee or his assignee could, before foreclosure, or during the pendency of
a suit to redeem, be allowed for permanent and valuable improvements, by an
extravagant application of means for improvement, he could generally so
embarrass the right of redemption, that it would (if not beyond the means of
the mortgagor or his assignee,) be worth little or nothing. But not so in
regard to improvements made after the foreclosure of a lien and sale and where
all the parties to the foreclosure are acquiescing in the same. If any of them
afterwards become dissatisfied with the decree, and procure its reversal, and
successfully assert a claim for rents and profits accruing before the
reversal, can any thing be more manifestly equitable than that they should
account for the increase in the value of the subject matter of controversy,
when that increase was had or made before the movement of strife, to reverse
or modify the decree? He that would have equity must do equity. See case
Manchester and others v. McKee, executor of McKee, 4 Gilman, 511 Smith v.
Sinclair, 5 Gilman, 108; The People, on relation of McKee, executor, v.
Gilmore, ibid, 242.

Admitting, only for the sake of argument, that the defendants are indebted to
the complainant for rents and profits, he can not enjoin the execution of the
decree, because there is no proof of their insolvency, and his remedy would be
by action of debt or assumpsit.

Caton, J. This bill was filed by the complainant, to redeem from a mortgage,
executed by his grantor prior to the date of his conveyance. The mortgage was
executed to John Manchester, on the 11th day of October, 1839, for $2,700. On
the 10th of January, 1843, McKee, a judgment creditor of Manchester, filed a
bill against him and others, to subject his interest in the mortgaged premises
to sale, to satisfy his judgments; and on the 8th of April, 1848, a decree was
entered in the circuit court, in obedience to a mandate of this court,
directing the defendants in that suit, or some of them, to pay to McKee the
sum of $2,617 93, within ninety days, or that the premises be sold. The
present complainant was one of the defendants in that suit. Pending the former
suit, in June, 1845, McKee assigned his claim against Manchester to John
Matthews, who shortly afterwards assigned two-thirds of the claim to Holobush
and Burbauk. Matthews seems to have had possession of the premises, or a part
of them, since some time in the year 1843, and Holobush and Burbank went into
the joint possession with him, under their claim, in June, 1845, the time when
they acquired their interest, and have since that time erected a warehouse
upon the premises, at an expense of $1,100, and have enjoyed the rents and
profits of the whole premises, and, as is alleged, have committed waste on the
premises, which the complainant prays to have applied in extinguishment of the
amount due upon the decree and mortgage.

Previous to the filing of this bill, John Manchester died, and Matthews was
appointed administrator of his estate, who was made a defendant, as well in
his representative as in his individual capacity. Since the bill was filed
Matthews has died, and the defendant Holobush was appointed administrator of
his estate, and Vansyckle was appointed administrator de bonis non of the
estate of John Manchester, deceased, and as such, was made defendant, appeared
and answered. This is the substance of the facts, as established by the
pleadings, exhibits and proofs, in this record, upon which the rights of the
parties are to be determined, except as to the amount of the rents and
profits. Although some allusion is made in the answers to the proceedings in
all of the various suits, which have at different times been pending in this
and the circuit court, yet they were not made exhibits, nor were they produced
upon the hearing, and consequently, we can not look into them to see whether
the rights claimed by the complainant would be affected by them or not, except
the decree rendered by the circuit court of Pike county, in the case of McKee
v. Manchester et al, which was made an exhibit by the bill, and a certified
copy of which was produced on the hearing.

The case then is simply this: McConnel purchased certain premises subject to a
mortgage. McKee became entitled to a part of the money due on the mortgage,
and obtained a decree for the sale of the premises, to pay his claim. McConnel
filed this bill against the assignees of McKee, and the administrator of the
estate of the mortgagee, and seeks to disencumber the land by the payment of
the amount due upon the mortgage, to those entitled to receive it; and asks
that certain rents and profits, received by the assignees of McKee, be applied
in extinguishment of the amount due them. The case when thus simplified,
presents no difficulty of sufficient importance to invite discussion. It is
certainly not necessary to cite authorities, to show that the grantee of the
mortgage may file a bill, to redeem from the mortgage, and have it satisfied.
The fact that a part of the money secured by the mortgage, has become due to
other parties than the mortgagee, can not affect this right. It is true that
McOonnel was a party to the suit, in which the right of McKee was established
to a part of the money secured by the mortgage, but this in no way abridges
his right to redeem, but the decree in that case rather confirms such right,
for it authorizes any of the defendants in that suit to pay the amount decreed
to McKee. No complaint can be made against the present complainant, because he
did not interpose a defence there. The truth is, he had no defence, nor does
he now pretend that he had any. He had nothing to say why McKee should not be
declared to be entitled to a part of the money secured by the mortgage. It was
a matter of indifference to him, to whom the money went. At the time that case
was set for hearing, in 1844, he had no claim against McKee, or his assigns,
for rents and profits, and, consequently, nothing to allege in diminution of
their claim. If he had had such claim, then it would have been lost by his not
having interposed it, when he had an opportunity. But McKee's assignees did
not go into possession under that claim, till June, 1845, which was some time
after that cause was set for hearing, and, consequently, he had no opportunity
of setting up the rents and profits since received. Surely he must have a
right to set up subsequent equities.

The rights of the defendants, as assignees of McKee, to an interest in or lien
upon this land, were derived from and depend upon the mortgage, and by virtue
of those rights they maintained the possession, and received the rents and
profits; and their possession was to the extent of those rights, the same as
the possession of a mortgagee under the mortgage. A mortgagee who enters upon
the mortgaged premises for condition broken, must account for the rents and
profits actually received, or which might have been received by reasonable
care and prudence. Van Buren v. Olmstead et al, 5 Paige, 9. This amount must
be credited as so much paid upon the mortgage, from year to year, first in
extinguishment of, the interest, and then of the principal. That rule,
however, should only be applied, in this case, to the extent of the
defendants' interest in the mortgage, as assignees of McKee. And should the
rents and profits exceed the amount due them, the excess can not be applied in
satisfaction of the balance due upon the mortgage, which goes to other
parties; but the complainant may have a decree against them, for the excess,
should there be any. It is true, that Matthews, one of the original
defendants, was, at the time the bill was filed, administrator of the
mortgagee, but he was in possession, not as such administrator, but as
assignee of McKee, and hence the estate of Manchester ought not to be held
responsible for any portion of the rents and profits received by him.

Almost the only new fact set up in the answer, which is sustained by the
proof, is the erection of the warehouse upon the premises, by the defendants.
For this they claim an allowance.

A mortgagee in possession is authorized, and even bound, to lay out money to
keep the estate in necessary repair, and to preserve it; but he is not
authorized to make new improvements, and tack the expense to the amount due
upon the mortgage, or pay it out of the rents and profits, except under very
extraordinary circumstances. Smith v. Sinclair, 5 Gilm., 108. It was argued as
if the record showed that this improvement was made after the premises were
purchased by the defendants, under the first decree, in favor of McKee, and
before that decree was reversed, and the sale to them under it set aside by
this court, as reported in 4th Gilman. Unfortunately the proper evidence of
those proceedings is not found in this record, and we can not base a decree
upon the evidence of the facts found in a reported case. Were these facts
properly established, and were we convinced that the improvement was made in
good faith, the defendants believing that they had made a valid purchase of
the premises, and that the expenditure was a judicious one, for the benefit of
the estate, we think they should be allowed for them. And, as the case will
have to be remanded, we think it but just and equitable that the defendants
should be allowed to amend their answer, so as to insert the proper averments,
and make the necessary exhibits, to prove the facts we have alluded to; but no
other amendments must be allowed. Should the defendants not be allowed for the
erection of this warehouse, then, in taking the account of the rents and
profits, the use of the warehouse should be excluded; but if they are allowed
for it, then they should allow for its use. Upon this basis, we have not
before us the necessary data upon which we can, satisfactorily, compute the
amount with which the defendants should be charged.

The decree, therefore, will have to be reversed, and the suit remanded, with
leave to the defendants to make the amendments we have specified, and with
directions to the circuit court to enter a decree establishing the right of
the complainant to redeem, by paying the amount, if any thing, due to the
assignees of McKee; and by bringing into the circuit court, subject to its
future order, the balance that shall be found due upon the mortgage, after
deducting the amount decreed to McKee, as so much money paid at the date of
that decree. The circuit court will also be directed to determine, whether the
defendants are entitled to an allowance for the erection of a warehouse upon
the mortgaged premises, according to the principles above laid down, and to
take an account of the rents and profits of the mortgaged premises, for which
the defendants are responsible, and of the waste committed by them on the
mortgaged premises, if any, and to set off the same against the amount due to
the defendants as assignees of McKee, and the amount, if any thing, which they
shall be allowed for the erection of the warehouse. And if any thing shall be
found due to the defendants Holobush and Burbank, that the complainant be
decreed to pay the same to them. Holobush to receive one-third part thereof,
as administrator of John Matthews, deceased. And if it shall be found, upon
taking said account, that any thing is due to the complainant, a decree for
the same be entered in his favor against the said Holobush and Burbank. One-
third part thereof to be paid out of the estate of the said John Matthews,
deceased, if they are assets in the hands of the administrator sufficient to
pay the same.

The question of costs alone remains to be considered. Ordinarily, upon a bill
filed to redeem, the complainant does not recover costs; and most frequently
he has to pay costs to the defendant, although he obtains a decree in his
favor. In this case, however, the complainant seeks other relief than that of
a mere right of redemption. One object of his bill is to establish his right
to rents and profits, and to have them set off against the amount due the
defendants. In this case, also, a considerable portion of the depositions
taken by the defendants, were upon an entirely immaterial point, and quite
unnecessary. Most of the answer, too, is either not pertinent, or
unnecessarily and improperly reflects upon the opposite party, and upon motion
in the circuit court would have been stricken out, at the cost of the
defendant's solicitor. Only material facts, clearly and succinctly set forth,
should be stated either in a bill or answer, and neither suitors nor
solicitors should be allowed to manifest their personal feeling upon the
records of or before the court; and this, we hope, is the last time that we
shall be called upon to notice so reprehensible a practice, by any one.

In the circuit court each party will have to pay his own costs, except the
costs of the defendant Vansyckle, which must be paid by the complainant.

Decree reversed.

----------------
Cited—M'Cumber v. Gilman, 15 Ill., 381; Blair v. Chamblin, 39 Ill., 521;
Harper v. Ely, 70 Ill., 581; Mosier v. Norton, 83 Ill., 519.

(1) Re-affirmed, generally, M'Connel v. Holobush, 12 Ill., 204.

(2) Mortgagee, on condition broken may enter and appropriate the rents and
profits to the benefit of his security, Moore v. Titman, 44 Ill., 367; Griffin
v. Marine Co., 52 Ill., 130; Roberts v. Fleming, 53 Ill., 196.

(3) Mortgagee in possession; rents and profits must be applied in satisfaction
of debt, Hitchcock v. Fortier, 65 Ill., 239; Roberts v. Pierce, 79 Ill., 378;
but, a prior mortgagee, under a mortgage for a term of years, who takes
possession of the premises under purchase of the fee, from mortgagor, who has
acquired the fee after he executed the mortgage is not to be regarded as
mortgagee in possession and, as such, accountable for rents and profits to a
junior mortgagee of the same term, Rogers v. Herron, 92 Ill., 583.

(4) Mortgagee in possession has a right to put on the premises all necessary
and proper repairs, to prevent waste and reimburse himself from the rents and
profits, unless the condition of the premises be such as to render such
repairs injudicious; new improvements, at the expense of the estate, are not
allowed, saye under peculiar circumstances, M'Cumber v. Gilman, 15 Ill., 381,
see Morgan v. Clayton, 61 Ill., 35; so, if the mortgagor, by his contract, be
required to pay taxes, as they become due, and to keep the property insured,
the mortgagee in possession, on default, may pay these and tack them to his
security, making the rents pay, Harper v. Ely, 70 Ill., 581; Willemin v. Dunn,
93 Ill., 511; but while he is bound to preserve he is not required, or
allowed, to make new improvements, except under extraordinary circumstances,
so as to tack the expense on to the mortgage debt, Smith v. Sinclair, 5 Gilm.,
108. Ordinarily a mortgagee in possession is required to account only for
actual receipts, less the moneys paid out for taxes and necessary repairs;
unless it be shown, by reasonable diligence, he could have realized more; he
will be responsible for gross negligence, resulting in loss to mortgagor,
Mosier v. Norton, 83 Ill., 519; S.C., 100 Ill., 63; Harper v. Ely, 70 Ill.,
581; Clark v. Finlon, 90 Ill., 245; Magunsson v. Charleston, 9 Bradw., 194.
Bill filed to redeem; the party entitled to proceed will not be charged,
against his consent with the costs of improvements thereafter made, Smith v.
Sinclair, 5 Gilm., 108; but, if the holder of the equity of redemption of
mortgaged premises, who is not made party to proceeding to foreclose, shall
remain silent, for years, standing by, while a purchaser under the decree
makes valuable improvements, on coming in to redeem he will be required to
pay, after deducting rents and profits, Bradley v. Snyder, 14 Ill., 263.

(5) Every fact essential to plaintiff's title to maintain the bill and entitle
him to relief must be stated in the bill; no reliance is to be placed on other
pleadings, or on evidence to sustain the bill, Helm v. Cantwell, 59 Ill., 524;
and the facts must be clearly and positively averred, Primmer v. Patten, 33
Ill. 528, specifically, Fitzpatrick v. Beatty, 1 Gilm., 454.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar.
CHICAGO: CALLAGHAN & CO. 1886.