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Livingston v. Meyers

OPINION FILED SEPTEMBER 23, 1955.

THEODORE LIVINGSTON ET AL., APPELLANTS,

v.

SID MEYERS, APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. ROBERTS, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

Plaintiffs-appellants appeal directly to this court from a decree of the circuit court of Cook County dismissing for want of equity their complaint against defendant-appellee for specific performance of a contract for purchase of real estate by defendant from plaintiffs. A freehold being directly involved, the appeal properly comes direct to this court. Sandra Frocks v. Ziff, 397 Ill. 497.

The complaint alleges that plaintiffs and defendant entered into a contract on March 12, 1954, for the sale by plaintiffs to defendant of two certain lots; that on May 5, 1954, plaintiffs tendered to defendant a merchantable abstract of title thereto; that on May 13, 1954, defendant's attorney presented to plaintiffs his title opinion, based on the abstract, that two trust deeds, one on each lot, should be released or removed from the records because the contract made no provision for the title to be subject to them; that the abstract of title showed two trust deeds, each dated January 6, 1930, executed by Charles B. Ramsey and wife, as grantors, to Chicago Title and Trust Company, as trustee, duly recorded January 8, 1930, each given to secure the payment of a note of the grantors of even date in the sum of $1500, due three years after date; that the notes secured by the trust deed were barred by section II of the Limitations Act and the liens of the trust deeds were declared null and void by section II(b) of the Limitations Act prior to the making of this agreement; that plaintiffs tendered to defendant a warranty deed to the premises in question and defendant refused to accept the deed and pay the balance of the purchase price due under the agreement. The complaint prayed specific performance of the agreement and that defendant be required to accept a deed to the property and to pay the balance of the purchase price due.

The defendant's motion to dismiss the complaint for failure to state a cause of action was based on the ground that sections II and II(b) of the Limitations Act referred to in the complaint were not sufficient in law or equity to remove the lien of said trust deeds, or to bar action thereon, or to require defendant to accept the title with the trust deeds unremoved or unreleased of record.

The trial court granted defendant's motion and, the plaintiffs electing to stand on their complaint, entered a decree dismissing the suit for want of equity.

The sole error assigned as a basis for reversal is the holding of the trial court that section II(b) of the Limitations Act does not render the trust deeds null and void and no longer liens upon the premises.

In 1941, the General Assembly of the State of Illinois repealed section II(a) and enacted section II(b) of the Limitations Act, (Ill. Rev. Stat. 1953, chap. 83, par. II(b),) which provides as follows:

"(a) The lien of every mortgage, trust deed in the nature of a mortgage, and vendor's lien, the due date of which is stated upon the face, or ascertainable from the written terms thereof, filed for record either before or after the effective date of this Amendatory Act, which has not ceased by limitation before the effective date of this Amendatory Act, shall cease by limitation after the expiration of twenty years from the time the last payment on such mortgage, trust deed in the nature of a mortgage, or vendor's lien became or becomes due upon its face and according to its written terms, unless the owner of such mortgage or vendor's lien, or the owner or trustee of such trust deed in the nature of a mortgage either

"(1) Before the effective date of this Amendatory Act, and within such twenty year period has filed or caused to be filed for record an extension agreement showing the time for which the payment of the indebtedness is extended, and the amount remaining unpaid on such indebtedness; or

"(2) After the effective date of this Amendatory Act, and within such twenty-year period or within one year after the effective date of this Amendatory Act, provided the above mentioned due date of the instrument was more than nineteen years before the effective date of this Amendatory Act, files or causes to be filed for record, either (1) an affidavit executed by himself or by some person on his behalf, stating the amount or amounts claimed to be unpaid on the indebtedness secured by such mortgage, trust deed in the nature of a mortgage, or vendor's lien; or (2) an extension agreement executed as hereinafter provided:

"(b) The lien of every mortgage, trust deed in the nature of a mortgage, and vendor's lien, in which no due date is stated upon the face, or is ascertainable from the written terms thereof, shall cease by limitation after the expiration of thirty years from the date of the instrument creating the lien, unless the owner of such mortgage or vendor's lien, or the owner or trustee of such trust deed in the nature of a mortgage, within such thirty year period or within one year after the effective date of this Amendatory Act, provided the date of the instrument was more than twenty-nine years before the effective date of this Amendatory Act files or causes to be filed for record either (1) an affidavit executed by himself or by some person on his behalf, stating the amount or amounts claimed to be unpaid on the indebtedness secured by such mortgage, trust deed in the nature of a mortgage, or vendor's lien; or (2) an extension agreement executed as hereinafter provided.

"The filing for record of an affidavit provided for by this section, within such twenty or thirty year period or one year period, as the case may be, shall extend the lien for a period of ten years after the date on which such lien would cease if neither an affidavit or extension agreement were filed, and no more, and a subsequent affidavit filed within the last ten year period of the lien, as extended, shall extend the lien for an additional ten year period, and no more, but successive affidavits may be filed, each extending the lien ten years.

"The filing for record of an extension agreement within such twenty or thirty year period or one year period, as the case may be, whether before or after the effective date of this Amendatory Act, shall extend the lien for ten years from the date the final payment becomes due under such extension agreement, and no more, but subsequent extension agreements filed before the lien, as extended, ceases, shall extend the lien for an additional ten year period from the date the final payment becomes due under such extension agreement, and no more: Provided, that the filing of an extension agreement shall not be construed in any way to cause the lien to cease before it would cease if neither an extension agreement nor an affidavit were filed. Affidavits may be followed by extension agreements, and extension agreements may be followed by affidavits.

"An extension agreement executed after the effective date of this Amendatory Act, to be effective for the purpose of continuing the lien of any mortgage, trust deed in the nature of a mortgage, or vendor's lien shall show the time for which the payment of the indebtedness secured thereby is extended and the amount remaining unpaid on such indebtedness, and shall be executed and acknowledged by the owner of the mortgage, trust deed in the nature of a mortgage, or vendor's lien, or someone on his behalf, and by one or more persons representing himself or themselves to be the then owners of the real estate. The affidavit or extension ...


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