Gambar halaman

impaired or diminished, but the par- ly tendered the amount of taxes paid ties were restored to their original by the mortgagee, with interest and position.

cost of the foreclosure action up to In Noyes V. Anderson (1891) 124 that time, which the mortgagee refused N. Y. 175, 26 N. E. 316, the mortgagor, to accept. In reversing the judgment after the mortgage was due, secured of the trial court in favor of the mortan agreement from the mortgagee gagee, and directing that the mortthat he would not enforce the mort- gagor be permitted to repay to the gage for a period of time, provided mortgagee the taxes which it had paid, that no taxes or assessments on the with interest thereon, it was stated premises became due and remained that the failure of the mortgagor to unpaid and in arrears for more than pay the taxes on the first day on which thirty days; a sewer assessment be- it was possible to pay them was manicame in arrears within the meaning festly a merely technical default, and of the mortgage clause, which, through that a court of equity would not enfault of the city authorities, was un- tertain an action to foreclose a mortknown to the mortgagor, but which she gage on account of such default when promptly paid when her attention was it appeared that the taxes were called to it, on the day previous to the promptly paid by the mortgagor when service of the summons in a foreclo- his attention was called to the default, sure proceeding on the ground that before the action was commenced, as taxes were in arrears, and the court the mortgagor was not injured thereheld that a judgment absolute should by; and although it was true that in be directed for the defendant, to the the case at bar the action was comeffect that she be relieved of the con- menced before the offer to repay was sequences of her default in the pay- made, this was because the action was ment of such assessment. It is to be begun so quickly that there was no noted that the decision is placed on opportunity to do so, and as soon as the ground that the default of which it became apparent that the mortgagee the mortgagee sought to avail himself was insisting upon his option to dewould result in a forfeiture from clare the whole debt due, the mortwhich the court of equity had the pow- gagee tendered all taxes, with interer to relieve.

est thereon. In Swon v. Stevens (1898) 143 Mo. And it has been held that a supple384, 45 S. W. 270, where the mort- mental answer alleging payment of gagees sold the premises for the taxes after the institution of a suit breach of the mortgagors' agreement

to foreclose a mortgage for nonpayto pay taxes promptly, it was held that ment of taxes, as provided in an acthe sale was wholly unauthorized, and celeration clause, constitutes a comwas voidable, where the taxes were plete defense to the action, since the paid between the time when the prop- payment fully restores all rights inerty was advertised for sale and the tended to be protected by that part of actual sale thereof.

the mortgage, and indemnifies the In Germania L. Ins. Co. v. Potter mortgagee or his assignee against all (1908) 124 App. Div. 814, 109 N. Y. possible prejudice or loss arising from Supp. 435, the mortgage provided that such default. Shaw V. Wellman the whole debt should become due and (1891) 59 Hun, 447, 13 N. Y. Supp. payable at the election of the mort- 527. gagee upon the failure of the mort- But it has been held that after the gagor to pay taxes, and the mortgagor mortgagee has exercised his option, failed to pay the taxes on the day on given him by the mortgage, to declare which they fell due; the mortgagor the mortgage debt due for nonpaypaid the taxes on the following day, ment of taxes, by commencing an acand elected to declare the whole debt tion to foreclose on that ground, a due, and on the same day began a fore- subsequent payment of the taxes by closure action; the mortgagor, after the mortgagor after the commencebeing served with process, immediate- ment of the action does not deprive the mortgagee of the right secured by of such default the whole mortgage the exercise of his option. Plummer debt was due, and that the payment v. Park (1901) 62 Neb. 665, 87 N. W. of the taxes after the decree for sale 534. And see Hockett v. Burns (1911) of the property did not obliterate the 90 Neb. 1, 132 N. W. 718, where it is default or devest the mortgagee of his said that the plaintiff's right to fore- right to sell, founded on such declose is not defeated by the payment fault. of the delinquent taxes by the mort- It has been held that where the gagor after the commencement of the mortgagor, who was in default in paysuit to foreclose, but before the de- ment of both interest and taxes, tencree.

dered the amount thereof after notice And where the mortgaged premises by the mortgagee of his intention to had been sold for unpaid taxes and the foreclose for nonpayment of taxes and mortgagee had redeemed from the tax interest under an acceleration clause sale, it was held in Stanclift v. Norton in the mortgage, the tender did not (1873) 11 Kan. 218, in an action to devest the mortgagee of his right to foreclose the mortgage, which provid- exercise his option of foreclosing, noted for the acceleration of the mortgage withstanding that, at the time the debt upon default in payment of taxes, tender was made, the foreclosure acthat there was no error in sustaining tion had not been commenced. Stewa demurrer to the defense, which al- art v. McCaddin (1908) 107 Md. 314, leged that after the filing of the peti- 68 Atl. 571. tion to the foreclosure proceedings, And in Thompson v. Hirt (1923) 195 the mortgagor had tendered to the Iowa, 582, 191 N. W. 365, where the mortgagee the full amount of the mortgage provided for the acceleration taxes, of the penalty, and of all costs of the maturity of the debt secured, accrued of the tax sale, which tender upon default by the mortgagor in paywas refused, and further, that the ment of taxes or assessments, it was mortgagor repeated the tender and held that a tender by the mortgagor brought the money into court, for, by of the amount of an assessment which the express terms of the contract, the he had previously refused to pay was entire amount of the debt was to be- too late, when it was made after the come due upon the failure of the mortgagee had redeemed the property mortgagor to pay taxes.

from the tax sale, and after he had And in Arkenburgh v. Lakeside Resi- served notice of his election to proceed dence Asso. (1897) 56 N. J. Eq. 102, 38

under the acceleration clause. Atl. 297, it was held that the failure And it has been held that the failure of the mortgagor to pay taxes on the of the mortgagor to pay taxes, which premises within ninety days after they are in arrears, within the time specibecame due, as provided in an acceler

fied in an acceleration clause in the ation clause, matured the mortgage,

mortgage, matures the mortgage unand the mortgagee's rights were not

less it is shown that the lapse is ataffected by the fact that the taxes were

tributable in some manner to the conpaid after the filing of the bill to fore

duct of the mortgagee, and the payclose.

ment of the taxes after the expiration And in Lotterer v. Leon (1921) 138

of the time limited in the mortgage, Md. 318, 113 Atl. 887, where the mort- but before the bill to foreclose is filed, gagor covenanted to pay taxes when does not affect the operation of the legally payable, and the mortgage fur- acceleration clause. Newark Trunk ther provided that, in case of default Co. v. Clark (1922) N. J. Eq. – being made in any covenant or condi- 118 Atl. 263. The court admitted, howtion therein contained, the debt secured ever, that there were authorities in should be due and payable at once, other jurisdictions which held that, as and the mortgagor failed to pay the the stipulation maturing a mortgage taxes, it was held that it was clear for the nonpayment of taxes was inunder the terms of the mortgage that tended to preserve the security, if the he was in default, and in consequence taxes were paid before, and even after, the suit was commenced, and the se- stated that it had been ruled othercurity was thereby restored, equity wise in New Jersey by previous cases. would relieve against the forfeiture And see Greene v. Richards (1923) in case the failure was not wilful, but 244 Mass. 495, 139 N. E. 175.

G. S. G.




Illinois Supreme Court - February 19, 1924.

(311 Ill. 66, 142 N. E. 554.) Attorney and client -- conducting quiz classes – unprofessional conduct.

1. It is not unprofessional for a member of the bar to conduct quiz classes to prepare law students who have completed the required course of study for their bar examinations.

[See note on this question beginning on page 748.] - conduct justifying disbarment. - right to revoke license.

2. Unprofessional conduct which 4. The right to practise law is merewill justify disbarment of an attor- ly a privilege, which may be revoked ney must have an element of immor- for conduct rendering one unfit to hold ality or dishonesty, or be of such char- a license to practise. acter as to be in violation of private [See 2 R. C. L. 940; 1 R. C. L. Supp. interests or the public good.

664.] [See 2 R. C. L. 1089; 1 R. C. L. Supp. - right to disbar. 698.]

5. An attorney can be disbarred - conduct prohibited.

only for good cause shown in a judi3. No attorney at law should be cial proceeding. permitted to engage in or continue in [See 2 R. C. L. 1103; 1 R. C. L. Supp. a course of conduct which brings the 703.] profession into disrepute.

(Dunn and Cartwright, JJ., dissent.)

INFORMATION to disbar an attorney at law. Rule discharged.
The facts are stated in the opinion of the court.

Messrs. John Long Fogle, William cago Bar Asso. v. Gilbert, 263 Ill. 85, H. Sexton, and Frank E. Harkness, 104 N. E. 1082. for relator:

Messrs. Joseph A. Weil, A. D. Cloud, Respondent, being a lawyer with Thomas J. Symmes, John A. Rose, and positive duties toward the profession, McKinney, Lynde, & Grear for reand as such lawyer being an officer of spondent. the court charged with the duty of aiding in the administration of justice,

Farmer, Ch. J., delivered the opinand having well-defined duties toward

ion of the court: the public, which obligations he is

This is an information to disbar shown to have wholly or partially dis- Lewis F. Baker, an attorney at law regarded, should be deprived of the of the city of Chicago, who was adlicense given him by the court.

mitted as an attorney at law in 1913, Re Mosness, 39 Wis. 509, 20 Am.

and has since that time been enRep. 55; Ex parte Garland, 4 Wall. 333, 18 L. ed. 366; People ex rel.

gaged in the practice of his profesChicago Bar Asso. v. Berezniak, 292 Ill. sion in the city of Chicago. The in305, 127 N. E. 36; People ex rel. Chi- formation charges, generally, that respondent devotes most of his time circulation of the rumors; that at to instructing and preparing appli- the July, 1921, examination, through cants for admission to the bar for an error, the printed questions to taking the examination before the be used in the examination twentyboard of law examiners; that for four hours later by the board were that purpose he conducts quiz inadvertently passed among part of classes, for which the members pay the applicants, but the mistake was him a substantial sum of money, the immediately discovered and efforts object being to prepare students, by made to have the lists returned; intensive work under the respond- that one of the lists, or a typewritten ent's supervision, to successfully copy of it, appeared the same day pass the examination for admission in respondent's office, and was used to the bar, without regard to the by him in preparing his students for student's previous training, or the examination; that respondent knowledge of or acquaintance with did not, as it was his duty to do, the fundamental principles of law; notify the board of the matter and that respondent is not connected endeavor to keep it from the knowlwith any college or institution giv- edge of his students, but posted the ing instruction to students, but con- list in a conspicuous place in his ofducts his classes for the purpose of fice, open to the view of the appli"cramming” applicants to pass the cants for admission to the bar. bar examination, and the instruction Count 3 charges that prior to the given by him is limited to the sub- December, 1920, examination, which jects mentioned in rule 39 of this was held by the board in Chicago, court.

31 A.L.R.-47.

the respondent procured or claimed The first count specifically charges to have procured advance informarespondent has for many years made tion of the questions, or some of a practice of cultivating the ac- them, which would be put to the apquaintance of members of the board plicants for admission to the bar, of law examiners for the purpose and offered to sell the information to of procuring their good will and to Robert J. Shaw for $300, and to C. use the same in aid of his business; Lysle Smith without cost to him, to that he employed a member of the be paid for by Smith's friends. board to draft a cross bill in a suit Count 4 charges that it was the pending, and paid him $200 for his practice of respondent, on behalf of services; that respondent told said applicants taking his course, who member he was conducting a law were lacking in the time of study reschool, and induced the member to quired to be shown by proofs to deliver a lecture in respondent's of- qualify them for taking the examfice to students who were taking his ination, to furnish them affidavits quiz course, for the purpose of caus- that the applicants had studied, ing the students to believe respond- under his personal tuition, the ent could aid them in passing the ex- period of time covered by their atamination; that respondent had tendance on respondent's classes, visited two members of the board and this, it is alleged, was an evadistant from Chicago for the pur- sion of the rule of this court. pose of cultivating their acquaint- After answer filed to the informaance, in the hope that it would aid

tion the cause was referred to a comhim in his business.

missioner, who heard the evidence The second count charges that in and filed his report, and the case the past there had been rumors that is submitted for decision on the certain applicants for admission to commissioner's report, without exthe bar had been able to procure, in ceptions having been filed by either advance, questions to be put by party. People ex rel. Chicago Bar the board of law examiners in an Asso. v. Gilbert, 263 Ill. 85, 104 N. examination, and that respondent E. 1082. had been active in encouraging the The report of the commissioner is (311 Ill. 66, 142 N. E. 554.) of considerable length, but the im- and counselor at law of the state of portance of the questions presented Illinois under the then-existing rules is such that we think it should be of this honorable court, and his set out in full. It is as follows: name entered on the roll of attor

"I, the undersigned, Roswell B. neys as an attorney and counselor Mason, a master in chancery of the at law of the state of Illinois. Said circuit court of Cook county and Lewis F. Baker is now, and has been special commissioner of the supreme since said date, engaged in the praccourt of the state of Illinois, do now tice of law in the city of Chicago, in respectively submit the following re- said state of Illinois. port pursuant to an order of this

“2. Since the year 1913 said rehonorable court entered June 20, spondent has devoted his time al1922:

most exclusively to the business of "Commencing on July 6, 1922, and instructing and preparing appliat various dates thereafter, down cants for admission to the bar for to and including December 4, 1922, their respective examinations by the I was attended at my office, room state board of law examiners of the 1602 Marquette Building, Chicago, state of Illinois. The method folIllinois, by Mr. John L. Fogle on be- lowed by respondent in carrying on half of the relator, and Mr. Thomas such business is to conduct what is J. Symmes on behalf of the respond- known as a 'quiz class' previous to ent. I have taken herein the deposi- the respective examinations, upon tions of Elmer H. Bielfeldt, Lysle the payment of $25 from each apSmith, Robert J. Shaw, William B. plicant enrolled in the class. Said Hale, Albert Watson, A. M. Rose, respondent admits to his quiz class James W. Watts, Lewis F. Baker, only those who have complied with Albert J. Ginsberg, John K. Moni- the rule of the supreme court in han, Samuel L. Golan, John J. reference to preliminary education Whiteside, Morris Fisher, and Al- and previous law study. Said work bert Woods. Prior to the examina- of said respondent is conducted by tion of said witnesses they were him solely for the revenue accruing each and all duly sworn by me ac- to the said respondent therefrom, cording to law, and their said deposi. and is of the same nature as that tions constitute, together with the carried on by several other quiz instruments in writing described in masters in Chicago, some of whom and attached to said depositions, are said to be attorneys at law. the entire transcript of evidence “3. The sole object of such quizin this cause. Said transcript of class work and instruction is to inevidence is in my possession, and I sure, as far as may be, that the apam ready to certify it up to this plicant taking such course, without honorable court in case either of the regard to his actual knowledge and parties hereto shall so desire. This acquaintance with the fundamentals case was argued before me by coun- of the law, shall, by reason of such sel for the parties in interest in intensive work under the guidance the month of February, 1923. I

of said respondent, be enabled suchave neither asked nor received any cessfully to meet the test of said compensation whatsoever for taking board of law examiners at the subsuch evidence and making this re- sequent regular examination for adport. From all the evidence offered mission to the bar. Said respondand received before me, being the ent is connected with no college or evidence included in said transcript institution giving training to such of evidence and no other evidence, students, and is not engaged in conI find:

ducting quiz classes covering spe"1. The respondent, Lewis F. cifically or generally any course in Baker, was by the supreme court of any college or institution of learnIllinois, on or about October 8, 1913, ing. Said respondent conducts said admitted and licensed as an attorney quiz course entirely independent of

« SebelumnyaLanjutkan »