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Fogel v. Hodes

OPINION FILED JANUARY 16, 1979.

MOLLIE FOGEL, PLAINTIFF-APPELLEE,

v.

AARON "ARCHIE" HODES ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE J. SCHALLER, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff Mollie Fogel and defendants Aaron "Archie" Hodes and Edith Hodes are beneficiaries of a land trust. The defendants appeal an order of the circuit court of Cook County directing them to exercise their powers of direction under the land trust, so as to permit the sale of the property by the plaintiff. *fn1 The plaintiff contends that this appeal should be dismissed due to the defendants' failure to comply with the Supreme Court Rules governing the preparation and presentation of abstracts and briefs on appeal. (Ill. Rev. Stat. 1977, ch. 110A, pars. 341 and 342.) Because we agree, only a brief summary of the facts need be set forth.

Prior to 1968, the subject property, a three-flat apartment building located at 2429 West Fargo, Chicago, Illinois, was held in a land trust at the Cosmopolitan Bank by the plaintiffs and Bernice and Ray Sachs. In 1968, the plaintiffs agreed to purchase the Sachs' interest for $21,000. The property at that time was valued at $45,000 to $50,000.

Unable to acquire a loan for this amount due to their advanced ages, the plaintiffs sought the help of the defendants, their nephew and his wife. In 1970, the defendants obtained a mortgage from the Fairfield Savings and Loan Association for $22,000. To transfer the title from the Fogel-Sachs land trust, the Cosmopolitan Bank conveyed the property to the defendants. Upon signing the note and mortgage, the defendants simultaneously deeded the property into the present land trust at the Chicago Title and Trust Company. The land trust agreement entered into on November 19, 1970, named the plaintiffs and the defendants as beneficiaries and granted each a power of direction. The following beneficial ownership clause represents the interests acquired by each:

"DORA FOGEL and MOLLY FOGEL, as joint tenants with the right of survivorship, during their lifetimes, and upon the death of the survivor of Dora Fogel and Molly Fogel, their interest not having been previously assigned, transferred or divested, in whole or in part, by any means or in any manner whatever, then and immediately thereafter, unto: ARCHIE HODES and EDITH HODES, his wife, as joint tenants, with the right of survivorship."

Thereafter, the plaintiffs continued living in the building, made the mortgage payments, and paid the taxes and most of the maintenance bills. The plaintiffs rented one of the apartments to the defendants for a year and a half at a reduced price.

Approximately a year before trial, the plaintiffs learned that they needed the defendants' signatures to sell the property. Upon the defendants' alleged refusal, the plaintiffs filed a complaint alleging, inter alia, that the defendants had been given powers of direction only to protect their interest in having assumed liability on the mortgage, that the defendants had agreed to exercise their powers of direction if the plaintiffs decided to sell the property, and that the beneficial ownership clause was not intended to limit their interest to a life estate. The defendants' answer denied these allegations.

Five witnesses testified at the bench trial: Dora Fogel; Russell Miller, the plaintiffs' attorney who drafted the land trust agreement; Jerrold M. Facktor, the defendants' attorney; and the defendants. Based on these witnesses' testimony, the trial court entered a partial judgment order finding that the trust agreement was not executed with the intent to limit the plaintiffs' interests to a life estate, and that the defendants had been given powers of direction for collateral purposes only to protect them from the plaintiffs' unilateral sale of the property without their knowledge or any assurance that the proceeds of the sale would be applied to the mortgage. In the final judgment, the trial court ordered (1) the defendants to exercise their powers of direction; (2) the plaintiffs to sell the property on the conditions that the sale price exceed the mortgage and the proceeds be first applied to the mortgage; (3) the parties to execute an agreement and mutual releases whereby the plaintiffs would hold the defendants harmless from liability on the mortgage and each would waive all rights and claims against the other in the property; and (4) the parties to establish an escrow for the sale of the property. It is from these orders that the defendants appeal.

I.

The plaintiff first contends that this appeal should be dismissed due to the defendants' failure to comply with the following provisions of Supreme Court Rule 342(e) (Ill. Rev. Stat. 1977, ch. 110A, par. 342(e)):

"Abstract. The appellant may elect to file an abstract of the record on appeal in lieu of the excerpts from record, in which event * * * the following provisions shall be applicable * * *:

(3) If the record contains the evidence it shall be condensed in narrative form so as to present clearly and concisely its substance. * * *

(4) Matters in the record on appeal not necessary for a full understanding of the question presented for decision shall not be abstracted, but the judgment or order appealed from and the notice of ...


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