APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, JR., Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Plaintiffs Roy and Marian Burlew appeal from the dismissal of their action to quiet title. They allege that they had a written agreement for the revision of a common boundary. The purchasers of the lot adjacent to plaintiffs, Robert and Rita Taylor, defendants, filed a motion for summary judgment pursuant to Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57), arguing that they were bona fide purchasers of the lot and purchased without notice of any change of the boundary line. After the parties filed affidavits and after arguments of counsel, the 19th Judicial Circuit Court granted the Taylors' motion. The claims against the other defendants were also dismissed. The Burlews appeal.
The Burlews contend that the trial court erred in dismissing their petition in chancery because there were genuine triable issues of fact to be determined.
The Burlews purchased lot 21 of the Deerpath Woods Subdivision in the city of Lake Forest from the E.A. Horsch Investment Company in 1968. They moved into their home on that lot in that year. On July 14, 1970, the Burlews made an agreement to change the boundary lines of lots 20 and 21 with E.A. Horsch, who still owned lot 20 next door. This agreement was memorialized on the survey prepared for the Burlews. The survey indicates that the Burlews modified the lot line so as to gain 3,475 square feet near the street or front part of their property, lot 21, in exchange for 3,575 square feet of their property to be added to the rear of lot 20. A diagram of the survey, not to scale, is provided here for clarification:
The notations made on this survey were "July 14, 1970, agreed (ss) E.A. Horsch, approved (ss) Roy Burlew R.B." The survey is apparently the only written agreement memoralizing the alleged exchange of property between Horsch and Burlew. The Burlews contend that this is a "revised plat" which was filed with the records office of the city of Lake Forest in September 1980 and was approved and entered into the official plat book of the city.
In 1970 the Burlews applied for a permit from the city to construct a three-car garage. The location of the garage is shown on the survey, which indicates that it is 9.9 feet from the corner of the now completed garage to the original lot line and more than 20 feet to the revised lot line. In 1971 the Burlews applied for a permit from the city to construct a wooden stockade fence. The Burlews point out that their entire property is enclosed by a stockade fence, a seven-foot-high masonry wall, and a five-foot-high chain link fence.
It is important to note that the Burlews did not record any documents changing the boundary lines of lots 20 or 21 with the Recorder of Deeds of Lake County. Nor did the Burlews pay taxes for any portion of lot 20 from the date of their purchase of lot 21.
In November 1980, the defendants Robert E. Taylor and Rita P. Taylor bought lot 20 and recorded their deed in the office of the Recorder of Deeds of Lake County. They purchased the property from Poterek Builders, Inc., who had purchased it from the Horsch Investment Company. The Burlews filed this action in January of 1981 to quiet title to the property in issue. The Taylors filed a verified answer, affirmative defense, and counterclaim.
The city of Lake Forest filed an answer requesting that it be dismissed as a party because the complaint filed by the Burlews did not request any relief from it. The trial court, in its order entered March 24, 1981, dismissed the city for that reason.
The trial court also found that the Burlews had no claim of title by adverse possession nor by payment of taxes pursuant to any statute. The court stated that the Burlews' claim was based on a revision of the plat of subdivision with the city of Lake Forest. The court found that the Taylors were bona fide purchasers of lot 20 as that lot is shown on the plat of subdivision recorded in the book of plats with the county.
The court found that the fence constructed by the Burlews was so constructed without conforming or changing the official Plat of Subdivision filed with the recorder of deeds of Lake County and without a deed to said property as required by law. The court stated that such a fence was not notice of possession which would give the Burlews title and that the cases cited by the Burlews were concerned with the open and notorious claim by a party of the entire fee and as such meant that subsequent purchasers took subject to the rights of a lessee. The court found that the Burlews' claim was inadequate because their situation differed so greatly from that of the parties in the cases the Burlews presented.
• 1 The first argument presented by the Burlews contends that the verified pleadings filed by the Taylors contain an admission that the Burlews have acquired a color of title to lot 20. In paragraph 3 of both the affirmative defense and counterclaim filed by the Taylors, they stated:
"3. That by deed dated November 13, 1980, and recorded in the office of the Recorder of Deeds of Lake County, Illinois, on November 18, 1980, as Document No. 2089271, Taylor acquired the fee simple title to the real estate (recorded deed, attached hereto as Exhibit A). Plaintiff thereby obtained in good faith, color of title to vacant and unoccupied land." (Emphasis added.)
The last sentence of these paragraphs was probably supposed to start with the words counterplaintiff rather than plaintiff. It appears to be a typographical error. The Burlews allege that this language is an admission by the Taylors in a verified pleading of the Burlews' title to the land in issue. However, if it were an admission it would mean that the Taylors would be admitting that the whole of lot 20 ...