APPEAL from the Circuit Court of Du Page County; the Hon.
WILLIAM L. GUILD, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Judgment was entered in favor of defendants Frank W. Tomenga, Nancy Tomenga, his wife, and Frances R. Arne, on their respective counterclaims to quiet title to certain vacant city lots. The court denied relief to the plaintiff corporation which had sought the same remedy. The case was heard upon a stipulation of facts.
Plaintiff appeals, claiming paramount title pursuant to the provisions of the Conveyances Act (Ill. Rev. Stat. 1965, ch. 30, par. 29), as the grantee of a deed from a common grantor which was first recorded. Defendants rely upon the provisions of Section 7 of the Limitations Act (Ill. Rev. Stat. 1967, ch. 83, par. 7) claiming color of title, payment of taxes for more than seven years with alleged acts of possession.
The parties stipulated in substance:
J. Duncan Barry and wife (the common grantor) conveyed Lot 24, Block 6 in Glen Park Subdivision together with many other lots in the same subdivision to the Chicago Title & Trust Co., as Trustee under Trust No. 20602, by deed dated and recorded April 11, 1928. Lot 11, Block 6 in Glen Park Subdivision was conveyed, together with numerous other lots by the same grantor to the same grantee by deed dated April 24, 1928, and recorded April 26, 1928. In 1948 the trustee conveyed to Bert E. Rathje and wife under a deed which included the subject property and numerous other lots. The Rathjes conveyed the lots, among many others, to Du Page Trust Co., Trust No. 428, by quit claim deed dated May 18, 1956, and recorded June 26, 1956. Trust No. 428 conveyed to W.B. Carroll by trustee's deed dated May 18, 1956, and recorded December 7, 1956. Carroll conveyed the subject property, among many other lots, to plaintiff, Slatin's Properties, Inc., by a quit claim deed dated December 6, 1956, and recorded December 11, 1956. On July 19, 1965, plaintiff enclosed the lots in question by erecting steel posts and connecting three wire strands, and it had brokers signs erected on the properties.
Prior to the deed from the Barrys to Chicago Title & Trust Company, as Trustee No. 20602 under which the Slatin's claim the Barrys had conveyed the same Lot 11, Block 6 to Anton Vanha by warranty deed dated October 24, 1927. This deed, however, was not recorded until August 28, 1929, which was after the deeds to Chicago Title & Trust Company, No. 20602 had been recorded. Thereafter, Vanha conveyed to Marie Tomenga by deed dated May 11, 1931, and recorded May 18, 1931; Marie Tomenga and her husband reconveyed to Anton Vanha by deed dated February 24, 1942, recorded May 23, 1942; and Chicago Title & Trust Company, as Executor of the Estate of Anton Vanha, Deceased, conveyed to Frank W. Tomenga by deed dated June 18, 1952 and recorded June 28, 1952. Anton Vanha paid the annual real estate taxes for the years 1928 through 1943. Frank Tomenga and his predecessors paid the taxes through 1944-1967. Anton Vanha paid installments 1-10 of Glen Ellyn Special Assessment No. 180 (for sewer lines and sewage disposal plant in the village); Frank Tomenga paid installments 1-3 of Glen Ellyn Special Assessment No. 204 (for sidewalks) in 1966, 1967 and 1968; and also paid for cutting weeds on the property in 1967 and in 1968 upon the demand of the Village.
Defendant Arne's claim to Lot 24, Block 6 is based on a contract entered into on August 30, 1927, with "Du Page Building and Development Organization". This contract was entered into prior to the deeds from J. Duncan Barry to the Chicago Title & Trust Company as Trust No. 20602 and the stipulation of facts does not contain any evidence of any contractual, fiduciary, or other relationship between the Du Page Building and Development Organization and Barry or any of his successors in title; nor is there evidence of the identity of the beneficiaries under the Chicago Title & Trust Company, Trust No. 20602, or of any connection between such beneficiaries and the Du Page Building and Development Organization. The contract in question was in the amount of $979, payable $79 down with the balance payable in monthly installments of $15 with six (6) per cent interest. The stipulation included a copy of the contract and receipts found totaling $220 with the last item being December 13, 1930. It was stipulated that the taxes were paid in the name of one Wilson for 1929 and 1932, and in the name of Arne for 1933-1967. Arne also paid installments 1-10 of Glen Ellyn Special Assessment No. 80 and 1-4 of Glen Ellyn Special Assessment No. 204; and amounts for cutting weeds in 1949, 1958, 1959, 1961, first paid to the township and then to the village.
It was further stipulated that plaintiff and its predecessors in title had never paid taxes or other charges levied against either of the properties for the more than 40 year period in question.
• 1 Under the stipulated facts, the plaintiff has shown continuous record title to both lots. Where there are two grantees under separate deeds from the same grantor, neither of whom is shown to have any knowledge, or notice, of the other's deed, the first deed to be recorded is effective, and the other is void under Section 30 of the Conveyances Act, supra, (Ill. Rev. Stat. 1965, ch. 30, par. 29). Vombrack v. Wavra (1928), 331 Ill. 508, 511, 513; Petta v. Host (1953), 1 Ill.2d 293, 304.
• 2 There is no evidence in the case that the grantees in the chain of title from the Chicago Title & Trust Company to the plaintiff had any knowledge of the chain of title from Vanha to Tomenga, or any knowledge of the installment contract between the Du Page Building and Development Organization and Arne. But bad faith, knowledge of equities of third parties and want of consideration are affirmative defenses and the burden of proof as to these matters is on the party asserting such fact, whereas the grantee in the deed is presumed to be a bona fide purchaser. Lowden v. Wilson (1908), 233 Ill. 340, 346.
The trial court found, pursuant to ch. 83, par. 7, supra, that defendants became the owners of the lots with good title by virtue of color of title plus payment of taxes, special assessments, and weed cutting levies. The real issue before us is posed by plaintiff's argument that its paramount title and ...