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Bergesen v. Clauss

OPINION FILED NOVEMBER 26, 1958.

OSCAR W. BERGESEN, ADMR., ET AL., APPELLANTS,

v.

OTTO CLAUSS ET AL., APPELLEES.



APPEAL from the Superior Court of Cook County; the Hon. JOHN A. SBARBARO, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 22, 1959.

Appellants, hereinafter referred to as plaintiffs, brought an action in the superior court of Cook County to have a certain deed declared a forgery and removed as a cloud upon the title to certain real estate. The original plaintiff died during the pendency of the lower court proceedings and his heirs, as well as the administrator of his estate, were substituted as parties plaintiff.

The defendants are the grantees in the deed alleged to be forged.

The proceedings below were concluded by the allowance of a motion of the defendants for summary judgment. The facts, for purposes of this opinion, are based on the allegations of the pleadings and upon factual information submitted by affidavits in support of the motion for summary judgment.

The complaint alleged that plaintiffs were the owners of an undivided one-half interest in certain real estate, the same having been acquired by the original plaintiff, by warranty deed dated April 27, 1926. Further, it was alleged that on December 4, 1936, a deed, regular in form, was recorded purporting to convey the premises to the defendants. This deed is alleged to have been forged. It is further contended that the deed was never delivered by the owners of the property and that the acknowledgment was false, fraudulent and void.

The complaint alleges that the original plaintiff had no knowledge of the recording of this deed until 1954, at which time an affidavit was filed for record alleging the forgery, and thereafter, in 1957, this action was instituted to remove the deed as a cloud upon the title of the original plaintiff. The complaint in this proceeding is verified by the affidavit of the original plaintiff.

The answer denies the material allegations of the complaint and, as a separate defense, alleges the delivery of the deed in question to the defendants in 1936; the payment of a valuable consideration as the purchase price for the property involved, part of which was used to pay an existing indebtedness of the original plaintiff that then existed as an encumbrance on the premises. The separate defense further details the purchase of the premises through a real estate agent, the closing of the transaction at the Chicago Title and Trust Company, the latter serving as escrow agent, and the representation of the sellers, one of whom was the original plaintiff, by a reputable attorney who took the acknowledgment on the deed alleged to have been forged. The real estate agent and attorney are now deceased.

Thereafter, according to the verified answer, the defendants entered into possession, made improvements, paid taxes and special assessments, and remained in possession from 1937 down to the present litigation.

A reply filed by the original plaintiff was in substance a denial of the special defenses urged in the answer.

The defendants thereafter filed their motion for summary judgment, urging that any interest that the plaintiffs ever have had in the premises was now barred by reason of sections 6 and 7 of "An Act in regard to limitations." Ill. Rev. Stat. 1955, chap. 83, pars. 6 and 7.

The motion for summary judgment was supported by the affidavit of one of the defendant grantees detailing the substance of the matters set forth as separate defenses in the answer, concluding with the assertion that the grantees in the disputed deed obtained the deed in good faith, accepted it in good faith, and were never apprised of any irregularity until the present claim was advanced. Other affidavits not here material were filed in further support of the motion.

In response to this motion and the affidavits thereto attached, the original plaintiff filed an unverified answer. Some six months after this answer was filed, during which period the original plaintiff died, the answer was, by leave of court, verified by counsel. This so-called answer to the motion sought to urge pleading defects alleged to exist in the motion for summary judgment and to deny the application of sections 6 and 7 of the Limitations Act to the factual circumstances in this case, and to join issue on the question of acquisition of title under the indicated sections of the Limitations Act.

The lower court granted the motion for summary judgment and dismissed the action. This appeal is from that order of dismissal, and this court has jurisdiction of ...


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