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Beals v. Cryer






Rehearing denied September 22, 1981.

On December 31, 1976, defendants, Alfred and Gladys Cryer, entered into an installment contract with Glen and Hazel Sturgeon for the purchase of a parcel of real estate in Shelby County, Illinois. Title to the property was held in the name of Glen Sturgeon. Under the provisions of the contract the sale price of the property was $3,000. Defendants paid $2,000 on December 31, 1976, leaving a balance due of $1,000 plus interest to be paid in 36 equal monthly installments. On the date of execution, the contract and deed to the property were delivered to the Strasburg State Bank as escrow agent.

Subsequently, on May 31, 1977, plaintiff, Ralph K. Beals, doing business as Beals Motor Company, obtained a judgment against Glen Sturgeon in the sum of $1,890.38 plus costs. On the same day, a memorandum of the judgment was filed in the recorder's office of Shelby County. At the time of filing, there remained unpaid on the installment land contract the sum of $843.30.

Unaware of the existence of the judgment against Sturgeon, the defendants continued making monthly payments and, after completing the contract payments, took delivery of the deed to the property, which was recorded on March 17, 1979. On May 4, 1979, plaintiff filed suit to have his judgment against the vendor, Glen Sturgeon, declared a lien on the real estate sold and conveyed to the defendants.

In response to interrogatories propounded by plaintiff, the defendants indicated that the subject parcel was vacant with no improvements. When asked when and how they went into possession of the premises, defendants responded as follows:

"The contract dated December 31, 1976, between Glen H. Sturgeon, Alfred J. Cryer and Gladys M. Cryer provided that possession was to pass to Buyers on or before the date hereof (that is to say, December 31, 1976).

Since the property was vacant, we had constructive possession, and my brother Harold Cryer kept an eye on the same for us; and my brother personally mowed the grass and weeds, and later my brother engaged Roger Smart to do the mowing, and the last two years, my brother, on our behalf, permitted a farmer to plant corn on the same in return for keeping the weeds down."

Pursuant to a motion by the plaintiff, the trial court entered summary judgment, finding that plaintiff's judgment was a lien on the real estate to the extent of $843.30. In its order, the court found that upon execution of the contract for deed, the defendants "immediately took and held possession of the premises." The order also described the parcel as "unimproved." The defendants appealed from the judgment.

On appeal, defendants assert that their possession of the real estate constituted notice of their interest in the property, equivalent to recording. Therefore, any claim that plaintiff was put on constructive notice of their interest and that plaintiff's judgment lien was taken subject to those equities and interests existing at the time of the filing of the memorandum of judgment, including defendants' interest in the property.

• 1 Illinois courts> have uniformly held that the actual occupation of land is equivalent to the recording of the deed or other instrument under which the occupant claims interest in the property. (German-American National Bank v. Martin (1917), 277 Ill. 629, 115 N.E. 721.) Generally, where the buyer of property under an unrecorded executory contract has prevailed as against persons claiming under or through subsequent conveyances or mortgages by the seller, it has been due to the fact that the subsequent party was charged either with actual notice of the buyer's rights or with constructive notice thereof through the buyer's possession of the property. Annot., 87 A.L.R. 1505 (1933).

• 2 Possession of property is equivalent to the recording of a deed both as to subsequent purchasers and as to judgment creditors who claim interest in land of which another has possession when the judgment was secured. Doll v. Walter (1940), 305 Ill. App. 188, 27 N.E.2d 231; Union Bank v. Gallup (1925), 317 Ill. 184, 148 N.E. 2.

Precisely what constitutes possession sufficient to be equivalent to recording depends upon the facts of each case. The fact that the person who exercises control over the land does not live on it does not imply that he is not in possession thereof; actual residence is not essential. (Chicago Title & Trust Co. v. Darley (1936), 363 Ill. 197, 1 N.E.2d 846; Carnes v. Whitfield (1933), 352 Ill. 384, 185 N.E. 819.) As one example, the possession of a tenant is notice of the possession of his lessor. (Chicago Title & Trust Co. v. Darley.) Further, if the owner "is in actual possession and there are continuous acts of ownership there is sufficient notice to the world of his claim of title." Carnes v. Whitfield (1933), 352 Ill. 384, 390, 185 N.E. 819, 821.

• 3, 4 In order for possession to be equivalent to recording, it must provide some measure of notice to the outside world of the possessor's interest in the land. Improvements or acts of dominion over land sufficient to constitute possession are those which indicate to persons residing in the immediate neighborhood who has the exclusive management and control of the land. (Chicago Title & Trust Co. v. Darley.) Before it can operate as notice of an unrecorded deed, possession must be "open, visible, exclusive and unambiguous, such as is not liable to be misunderstood or misconstrued." (Millikin Trust Co. v. Gregory (1937), 292 Ill. App. 28, 35, 10 N.E.2d 853, 856.) The prevailing rule is that, "where one purchases land of another which is at the time of the purchase in the actual, open, exclusive and visible possession of a third person, such possession is constructive notice to the purchaser of all the rights whatever of the possessor of the land at the time of the purchase." Union Bank v. Gallup (1925), 317 Ill. 184, 188, 148 N.E. 2, 3-4.

The same issue presented here was addressed in Burnex Oil Co. v. Floyd (1969), 106 Ill. App.2d 16, 245 N.E.2d 539, where the reviewing court, in ...

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