APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from the entry of summary judgment for defendant in a suit to foreclose a vendee's lien, and the sole issue presented is the propriety of the judgment.
It appears that in June of 1974, plaintiffs entered into a written agreement with Stross & Leslie, Inc. (Stross) for the purchase of certain real property held in a land trust wherein the First National Bank of Blue Island was trustee and Stross the beneficiary. Pursuant to the terms of the agreement, plaintiffs made a down payment to Stross of $1,000 upon the execution of the contract and several months later they made another payment of $2,840. Title was never conveyed, however, and plaintiffs filed an action against Stross in March of 1975 to recover the payments made and, at the same time, they filed with the recorder of deeds a document entitled "Notice of Purchaser's Lien." This notice, after showing the title of the action filed by plaintiffs, states as follows:
"I, the undersigned, do hereby certify that the above entitled cause was filed in the above court on the 6th day of March, 1975 and that the allegations of the Complaint filed therein do state that plaintiffs are entitled to the recovery of $3,840.00 as and for monies paid by them for the purchase of the property described as follows:
[legal description provided]
for which amount plaintiffs do have a lien against said property as security for the repayment thereof."
It appears, however, that this action was never resolved because of Stross's involvement in Federal bankruptcy proceedings.
In January of 1976 the property in question was conveyed by First National Bank of Blue Island, as land trustee, to defendants Ronald and Pamela Ivancsits, as joint tenants. In the course of this transaction, Fireside Federal Savings and Loan Association, defendants' mortgagee, obtained a commitment for title insurance from Chicago Title Insurance Company which contained an objection based upon the recorded notice of purchaser's lien. Subsequently, in May of 1977, plaintiffs brought the instant suit against defendants, seeking to foreclose the lien, and defendants in turn moved for summary judgment on a number of grounds of which only two have been questioned by plaintiffs in this appeal.
In the first of these, defendants asserted that because the notice of purchaser's lien was recorded outside the chain of title, they could not be charged with constructive notice thereof and, since they otherwise had no actual or constructive knowledge of the lien claim when they purchased the property, it was unenforceable against them. In support of this ground, defendants submitted four affidavits one by each defendant, in which it was stated that they purchased the subject property and received legal title therefor by trustee's deed from First National Bank of Blue Island; that at no time prior to the filing of the instant suit did either receive notice of the lien or otherwise have actual knowledge of it; that neither examined or knew of the commitment for title insurance from Chicago Title Insurance Company; and that prior to the purchase of such property neither had received any knowledge of any claimed interest of plaintiffs. In a third affidavit, Robert Johnson, an employee of Chicago Title Insurance Company, stated that its records disclosed that an application for title insurance was processed concerning the subject property and that, while a commitment was sent to Fireside Federal containing an objection based on plaintiffs' notice of purchaser's lien, there is no indication that a copy of the commitment was sent to plaintiffs or any other party. The fourth affidavit of Milton Steinke, president of Fireside Federal, stated that its mortgage loan records do not show that a copy of the commitment was forwarded to defendants or their attorneys.
In the other supporting ground questioned by plaintiffs on appeal, defendants asserted that the alleged vendee's lien could attach only to the extent of the vendor's interest in the property; that because Stross was the vendor and held only a beneficial interest in the property under a land trust, any lien that plaintiffs might have could not attach to the legal and equitable title interests held by the land trustee; and that any such lien could not and did not follow such title when it was conveyed to defendants.
Plaintiffs submitted no counteraffidavits or other documents in opposition to the motion for summary judgment, which was granted without any specification by the trial court as to the basis of its ruling.
1 It is plaintiffs' contention that summary judgment was improperly entered, because factual issues existed as to two of the supporting grounds asserted by defendants. The use of summary judgment is to be encouraged in a proper case (Tatelman v. Tatelman (1975), 25 Ill. App.3d 678, 323 N.E.2d 821; Green v. McClelland (1973), 10 Ill. App.3d 350, 293 N.E.2d 629) and should be entered where there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law (American Buyers Club v. Zuber (1978), 57 Ill. App.3d 899, 373 N.E.2d 786; Manda v. Branham (1977), 50 Ill. App.3d 91, 365 N.E.2d 216; Freeman v. Augustine's Inc. (1977), 46 Ill. App.3d 230, 360 N.E.2d 1245). However, it is a drastic method of disposing of litigation (Equilease Corp. v. Cattlemen's Freezer Meats, Inc. (1973), 13 Ill. App.3d 1, 299 N.E.2d 419; Green v. McClelland), which should be granted only where the movant's right thereto is clear and free from doubt (Gagliardo v. Vodica (1978), 58 Ill. App.3d 1053, 374 N.E.2d 1302; Manahan v. Daily News-Tribune (1977), 50 Ill. App.3d 9, 365 N.E.2d 1045).
2-4 Plaintiffs initially contend that there was an issue of fact as to whether defendants had notice of their claim for vendee's lien. In this regard, it is established that when a vendee has made partial payment pursuant to a contract to purchase real estate and the vendor improperly refuses to convey, the vendee acquires an equitable lien against the property as security for the amount paid and for the performance of the vendor's obligation to convey. (Clarke v. Mayberry (1911), 165 Ill. App. 639; Swetitsch v. Waskow (1890), 37 Ill. App. 155; 35 Ill. L. & Prac. Vendor & Purchaser § 173 (1958); 4 J. Pomeroy, Equity Jurisprudence § 1263 (5th ed. 1941).) Such liens are enforceable at equity (Swetitsch v. Waskow) and are superior to the claim of a subsequent purchaser who takes the property with actual or constructive notice of the lien claim (Larson v. Metcalf (1926), 201 Iowa 1208, 207 N.W. 382; Gribble v. Stearman & Kaplan, Inc. (1968), 249 Md. 289, 239 A.2d 573; Fowles v. Bentley (1909), 135 Mo. App. 417, 115 S.W. 1090; Segal v. Kulch (1961), 13 App. Div.2d 1011, 216 N.Y.S.2d 538, aff'd (1962), 11 N.Y.2d 834, 227 N.Y.S.2d 446, 182 N.E.2d 117; Annot., 82 A.L.R.3d 1040, 1052 (1978); 4 J. Pomeroy, Equity Jurisprudence § 1263 (5th ed. 1941)). In Illinois, such constructive notice is achieved by the recordation of a notice in the legal records which the recorder is required to maintain by law (Landis v. Miles Homes Inc. (1971), 1 Ill. App.3d 331, ...