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Slatin's Properties, Inc. v. Hassler

OPINION FILED NOVEMBER 30, 1972.

SLATIN'S PROPERTIES, INC., APPELLEE,

v.

ROSE HASSLER ET AL. — (FRANK W. TOMENGA ET AL., APPELLANTS.)



APPEAL from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County; the Hon. WILLIAM L. GUILD, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 26, 1973.

An action to quiet title to several vacant city lots was commenced in the circuit court of Du Page County. Defendants filed a counterclaim alleging that they were the owners of the contested properties. The trial court sustained the counterclaim, finding that defendants were the owners, but the appellate court reversed (Slatin's Properties, Inc. v. Hassler, 132 Ill. App.2d 882, 271 N.E.2d 665), and we granted leave to appeal.

This cause involves two parcels of vacant and unoccupied property described as Lot 24 and Lot 11 of Block 6 located in the Glen Park Subdivision in Du Page County. The chronological sequence surrounding this cause was stipulated by the parties.

Plaintiff claims ownership of both lots from a chain of title originating from J. Duncan Barry's conveyances to the Chicago Title and Trust Co., as trustee, in April, 1928. Both deeds were promptly recorded. After a series of conveyances, plaintiff obtained title by quitclaim deed on December 6, 1956. Several months before instituting this action in 1965 plaintiff enclosed both lots with a wire fence. It is basically plaintiff's position that it possesses paramount title under the Conveyances Act which provides that deeds and other instruments shall take effect from and after the time they are filed of record. Ill. Rev. Stat. 1965, ch. 30, par. 29.

Defendant Frank Tomenga asserts ownership to Lot 11 through a chain of title originating from the purchase of the property by Anton Vanha under warranty deed from J. Duncan Barry (the common grantor) executed in October, 1927. However, this deed was not recorded until August 28, 1929. After a series of conveyances, Tomenga acquired the property in 1952 from the executor of Vanha's estate.

Co-defendant Frances Arne, as devisee of her husband's estate, claims ownership of Lot 24 based upon a contract to purchase this property entered between her husband and the Du Page Building and Development Organization on August 30, 1927. This contract was not recorded.

The record further indicates that each defendant and their predecessors have paid all general real-estate taxes and special assessments for sanitary disposal, sidewalks and weed removal since 1928 until 1967 and during oral argument defense counsel has informed this court that defendants have continued to pay taxes until the present time.

Conversely, plaintiff and its predecessors in title have never paid any general real-estate taxes or special assessments levied upon the lots for approximately 40 years. Based upon these facts defendants contend that plaintiff, as holder of the paramount title (the record title), is barred from maintaining this action by section 7 of the Limitations Act which provides: "Whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his or her paper title. * * *" Ill. Rev. Stat. 1965, ch. 83, par. 7.

This section was originally enacted in 1839 (Laws of 1839, section 2, pp. 266-267, approved March 2, 1839) and has remained virtually unchanged. Numerous decisions of this court have construed section 7 as requiring that the person having color of title made in good faith and thereafter paying the legally assessed taxes for seven successive years must also take possession of the property. E.g., Failoni v. Chicago and North Western Ry. Co., 30 Ill.2d 258, 261; Chicago Title and Trust Co. v. Drobnick, 20 Ill.2d 374, 379; White v. Harris, 206 Ill. 584, 589; Gage v. Smith, 142 Ill. 191, 195; Paullin v. Hale, 40 Ill. 274, 277; Stearns v. Gittings, 23 Ill. 332, 337.

It is not seriously questioned that each defendant holds color of title which was received in good faith and has paid taxes for over seven years. They contend, moreover, that in light of the character of the property involved in this proceeding they have exercised sufficient acts of "possession" necessary to assert the bar imposed by section 7. These are described as payment of real estate taxes and special assessment levies for sewerage, sidewalks and weed removal. However, they are unable to cite any authority to support their position that these acts constitute sufficient possession under that section.

Possession within the meaning of section 7 has been defined as the appropriation of land "to the individual use in such a manner as to apprise the community or neighborhood that it is in the exclusive use and enjoyment of the person so appropriating it. The character of the possession must be such as to arrest attention, and put others claiming title upon inquiry." (Chicago Title and Trust Co. v. Drobnick, 20 Ill.2d 374, 379; see also Robertson v. Bachmann, 352 Ill. 291, 296; Wylie v. Fisher, 337 Ill. 488, 490; Towle v. Quante, 246 Ill. 568, 574.) We do not believe that defendants' mere payments of taxes and special assessments constitute sufficient acts of "possession."

Alternatively, defendants argue that this court has misconstrued the requirements of the section in necessitating the element of possession to effectuate the bar. We do not agree. The requirement of possession has become a well-settled rule of property in this jurisdiction and defendants have advanced no compelling argument necessitating reconsideration of these decisions.

Defendants further argue that plaintiff is precluded from instituting this suit because it is barred by laches. The appellate court held that the issue was properly before it, and we agree. (132 Ill. App.2d 882, 887, 271 N.E.2d 665, 669.) The appellate court rejected defendants' contention, having concluded that plaintiff's title would be transferred merely because it had failed to pay taxes and this result could only occur under section 7 of the Limitations Act (Ill. Rev. ...


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