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Mcgill v. Biggs





APPEAL from the Circuit Court of Kankakee County; the Hon. WAYNE P. DYER, Judge, presiding.


Plaintiff's mother, Ivory Anderson, died on October 7, 1977, leaving him as the surviving joint tenant of certain real estate located in Kankakee County, commonly known as Route 3, Box 446, Momence, Illinois. Plaintiff desired to provide her with a funeral at the Wesley Funeral Home with which his half-uncle, the defendant, was familiar, and plaintiff requested defendant's assistance in raising the funds necessary which approximated $1,500.

Plaintiff asked defendant to accompany him while he attempted to borrow the money at banks in Momence, Kankakee and Chicago. Defendant accompanied plaintiff in his efforts to borrow the necessary funds for his mother's funeral but they were unsuccessful.

Plaintiff and defendant then entered into an agreement whereby in return for defendant's paying the funeral bill for plaintiff's mother (who was also the defendant's half-sister) plaintiff would deed the premises to defendant.

Plaintiff was vague as to the nature of the transaction, but testified that defendant told him he would need a quitclaim deed as "collateral." Plaintiff did not know what a quitclaim deed was but he understood the meaning of "collateral." Plaintiff testified that he didn't intend to permanently transfer the title to the property to the defendant. Plaintiff testified that he valued the property at approximately $15,000, while defendant testified he didn't know the value of the property. Defendant admitted that he knew plaintiff was upset and distressed when the transaction took place.

Plaintiff and defendant went to defendant's attorney's office where plaintiff signed a paper he thought was a contract to pay defendant $115 a month for 15 months ($1,725). A warranty deed was prepared by defendant's attorney and signed by plaintiff when he went to the lawyer's office on October 9, 1977, two days after his mother's death. The next day, defendant paid the funeral bill in the sum of $1,473.75.

Plaintiff made one payment to defendant before losing his job and generally falling on hard times by drinking heavily. No further payments were made to defendant. Plaintiff and his family made temporary use of the premises on several occasions after delivery of the deed to defendant at his lawyer's office. Defendant conceded he did not go to the house after his half-sister died. Plaintiff continued to keep the property in good repair and to pay the 1978 and 1979 taxes on the property and defendant made no attempt to pay any taxes on the property until October of 1980, when his check was returned, indicating that the taxes had already been paid. In January of 1980, plaintiff had offered to pay defendant the balance of the debt but defendant refused payment. In June of 1980, defendant recorded the deed.

Defendant never used the property or interfered with plaintiff's use until June 1980, when plaintiff discovered that defendant was attempting to list the property for rent with a real estate broker. Plaintiff contacted an attorney, discovered the warranty deed and filed the instant suit to quiet title, the issue being whether the deed was absolute with a contract back to repurchase, or whether it was intended as a mortgage to secure repayment of the funeral bill.

From the trial court's ruling in plaintiff's favor (plaintiff was ordered to pay the balance due on the loan of $1,610 plus 5% per annum on $1,473.75 from January 10, 1980) that a debt relationship existed between the parties and that the warranty deed was in fact a mortgage, defendant has appealed.

We note initially that it is provided by statute that:

"Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage." Ill. Rev. Stat. 1977, ch. 95, par. 55.

• 1 In order to convert a deed absolute on its face into a mortgage, the proof must be clear, satisfactory, and convincing (Burroughs v. Burroughs (1973), 11 Ill. App.3d 176, 296 N.E.2d 350), and can come from almost every conceivable fact that could legitimately aid that determination. Each case will depend upon its own special circumstances. Warner v. Gosnell (1956), 8 Ill.2d 24, 132 N.E.2d 526.

Many circumstances have been recognized or considered by Illinois courts>, including the existence of an indebtedness, the close relationship of the parties, prior unsuccessful attempts for loans, the circumstances surrounding the transaction, the disparity of the situations of the parties, the lack of legal assistance, the unusual type of sale, the inadequacy of consideration, the way the consideration was paid, the retention of the written evidence of the debt, the belief that the debt remains unpaid, an agreement to repurchase, and the continued exercise of ownership privileges and responsibilities by the seller. Burroughs v. Burroughs (1971), 1 Ill. App.3d 697, 274 N.E.2d 376; Burroughs v. Burroughs (1973), 11 Ill. App.3d 176, 296 N.E.2d 350; Robison v. Moorefield (1952), 347 Ill. App. 508, 107 N.E.2d 278; Havana National Bank v. Wiemer (1975), 32 Ill. App.3d 578, 335 N.E.2d 506; Warner v. Gosnell (1956), 8 Ill.2d 24, 132 N.E.2d 526; Illinois Trust Co. v. Bibo (1927), 328 Ill. 252, 159 N.E. 254; Miller v. Thomas (1853), 14 Ill. 428; Wilkinson v. Johnson (1963), 29 Ill.2d 392, 194 N.E.2d 328.

• 2 The defendant contends the trial judge erred in finding a debt relationship when neither party directly testified that plaintiff owed a debt to defendant, or that defendant would reconvey to plaintiff upon payment of such debt. However, direct evidence is not required. In fact, no particular kind of evidence is required. (Burroughs v. Burroughs (1971), ...

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