delivered the opinion of the Court:
Plaintiff in error had executed a mortgage to Luther Smith, on a quarter section of land in Knox county, to secure $1300. Subsequently plaintiff in error executed another mortgage on the same land to defendant in error to secure the payment of $3000, with ten per cent interest. Smith having died, his executor, at the February term, 1876, of the Knox circuit court, exhibited his bill against plaintiff in error and defendant in error, to foreclose Smith’s mortgage. Defendant in error set up in his answer his mortgage, and also that he had paid $119 to redeem the premises from a sale for taxes. He also filed a cross-bill to foreclose his mortgage, and to enforce his lien for the $119 he had paid to redeem the land from the sale for taxes, and offered to pay anything that was due on Smith’s mortgage, and prayed to be subrogated to Smith’s rights, and asked a reasonable allowance for a solicitor’s fee, claiming $200 therefor.
At the time the cause came on for hearing, defendant in error paid, to Smith’s executor, and he received in open court, the amount due on the Smith mortgage. The cause then progressed to trial under the original and cross-bills, when the court rendered a decree in favor of defendant in error for the amount due on both mortgages, and also a solicitor’s fee of $175, and the costs of the suit, and ordered the payment of the money thus found by the decree within thirty days, and in default of payment that the premises be sold. It appears from the record that they were sold and bid in by defendant in error in satisfaction of the decree, and the sale Avas reported to and approved by the court, and plaintiff in error brings the record to this court on error, and urges a reversal.
This controversy turns on a provision in the mortgage of defendant in error, Avhich is this: “ It is understood that if this mortgage shall be foreclosed, or a bill filed for that purpose for the non-payment of the interest, principal, or any part thereof, when the same shall become due and payable, a reasonable sum for complainant’s solicitor’s fees, to be fixed by the court, shall be included in the decree; or in case of settlement before decree, taxed as costs.”
From this stipulation it is apparent that the solicitor’s fee was not intended as a gratuity, nor can we, without evidence, presume it was intended as a cover for usury. It was probably intended to indemnify the mortgagee for his expenses in employing a solicitor to file a bill and prosecute a suit to a final decree of foreclosure, if such a course became necessary; but even in that case it is not apparent that there was a consideration to support the promise. If intended as a mere gratuity, there was no consideration; if as a cover for usury, then the promise is prohibited by the statute; and if as an indemnity, the consideration is apparent. But in the view we take of the case it is not necessary to consider these questions.
Conceding that the agreement was given to indemnify defendant in error for expenses in employing a solicitor to file a bill and obtain a decree of sale, and that there was a sufficient consideration, it was undoubtedly in the minds of the parties that the services of a solicitor should have been necessary, and for the purpose of foreclosing the mortgage. It was not intended to pay a solicitor’s fee for unnecessary and useless services, however extensive or laborious. It was only intended to pay for services necessary, and contributing to a decree for the sale of the land to satisfy the mortgage.
In this case the solicitor filed no bill to foreclose the mortgage. When Smith’s executor filed the bill to foreclose the Smith mortgage, and made defendant in error a defendant, no bill or. cross-bill, of even an answer, was necessary to foreclose. A foreclosure under that bill would produce a sale of the land, and defendant in error, even if he had not answered, could have proved his claim and been let in to have satisfaction out of the surplus. It has been held that incumbrancers not parties, may prove their claims and be allowed to participate in the surplus. In foreclosing a mortgage where junior mortgagees and incumbrancers are parties defendant, a cross-bill is unnecessary unless affirmative relief is sought. The foreclosure of the prior mortgage affords relief to all subsequent incumbrancers, as they have the right when parties defendant to participate in the distribution of the surplus. Ellis v. Southwell, 29 Ill. 549; Derrick v. Lamar Ins. Co. 74 id. 404; Walker v. Abt., 83 id. 226; Crocker v. Lœwenthal, id. 579; Labadie v. Hewitt, 85 id. 341; Shaver v. Williams, 87 id. 469; Edgerton v. Young, 43 id. 464. This is a settled doctrine of this court, and from it there was not the slightest necessity for filing the cross-bill.
The filing of an answer and cross-bill did not fall within the terms of the stipulation, as defendant in error, on a mere motion, without an answer, could have had his claim referred to the master to hear evidence and report, which would have involved but a very trifling expense even if a solicitor had been employed, as it could occupy but little time or skill, nor would that have fallen within the stipulation.
We, from this record, are wholly unable to see that the solicitor in this case did anything within the terms of the stipulation, and there is nothing to show plaintiff in error is liable for any portion of the fee allowed by the court, and it erred in decreeing its payment.
The decree of the court, therefore, so far as it allows a solicitor’s fee, $175, is reversed, but it is in all things else affirmed. And a decree for $175, with interest at the rate of six per cent per annum, from the 27th day of October, 1877, until paid, is rendered in this court in favor of plaintiff in error against defendant in error.
Decree modified.