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In Re Estate of Shedrick

OPINION FILED MARCH 16, 1984.

IN RE ESTATE OF CLARENCE SHEDRICK, DECEASED (KATIE BAILEY, EX'R OF THE ESTATE OF CLARENCE SHEDRICK, PETITIONER-APPELLANT,

v.

ERNEST M. ISBY, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Arthur C. Perivolidis, Judge, presiding.

PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Katie Bailey, executor of the estate of Clarence Shedrick, appeals from an order declaring valid a quit-claim deed from Shedrick to Ernest M. Isby. She raises the following issues: (1) whether the deed was properly delivered and accepted; (2) whether the grantee's redelivery of the executed, unrecorded duplicate original deed to the executor affected the passing of title; (3) whether the court erred in finding that no fiduciary relationship existed between Shedrick and Isby and that there was no evidence of overreaching. For the reasons which follow, we affirm the judgment of the trial court.

The evidence in this case was heard by the trial court sitting without a jury. Following is a brief summary of the facts pertinent to our disposition.

Ernest Isby was the nephew, by marriage, of Clarence Shedrick. Isby lived with his aunt and Shedrick at various times during his childhood and, at the time of Shedrick's death, had resided in his home for almost two years. At Shedrick's request Isby managed his business affairs — collecting rents, depositing checks and paying bills — from April 1981 until Shedrick's death. Some of the checks payable to Shedrick were deposited in Shedrick's account, some were deposited by Isby in his own account. Isby routinely endorsed checks payable to Shedrick by signing Shedrick's name and also signed Shedrick's name on checks written on his behalf. Isby wrote checks on both his own and Shedrick's accounts in payment of Shedrick's bills.

Shedrick and Isby first discussed Isby's purchase of the property owned by Shedrick located at 2420 West Warren Boulevard, Chicago, in September 1980 and established a purchase price in January 1981.

On August 10, 1981, Isby was informed of Shedrick's imminent death. The next day he conferred with Shedrick's attorney regarding the purchase of the property and learned that title to the property could be transferred by quit-claim deed. On August 12 Isby purchased two quit-claim deed forms and filled in the names of the parties, address of the property to be conveyed, sales price and consideration paid. That day Shedrick and Isby executed duplicate original deeds before a notary public who then completed the certificate of acknowledgment. Isby gave Shedrick a check for $500, which check Isby later deposited in Shedrick's account. Isby testified that he and Shedrick agreed that Isby would pay the remainder of the purchase price in monthly installments of $405 each. Shedrick died two days later on August 14, 1981.

On September 22, 1981, Isby gave one of the duplicate original deeds to the executor's brother to give to the executor and retained possession of the other. The executor testified that her brother told her that Isby stated that he would like "first choice" if she ever wanted to sell the property. Isby testified that he gave the deed to the executor so that she could have it examined by Shedrick's attorney and thus determine its validity.

In the succeeding months Isby continued to manage the subject property as he had before Shedrick's death, with the permission of the executor, but made no attempt to collect rent on his own behalf. In October, Isby mailed a check for payment of real estate taxes on the property but stopped payment on the check when the executor stated that she was taking control of the property. Isby paid no bills related to the property nor did he tender payment of any of the remainder of the purchase price called for in the deed. Isby recorded the duplicate original deed in January 1982 but made no other claim of ownership from the time of execution of the deeds until the filing of the instant suit.

On December 3, 1981, the executor filed an inventory of Shedrick's assets valuing the subject property at $15,000. Thereafter, in March 1982, Isby filed a claim against the estate alleging ownership of the property by virtue of the quit-claim deed. Isby testified at trial that he considered the deed executed August 12, 1981, valid as to Shedrick and himself, but thought that it was not considered valid by governmental authorities until it was recorded.

On Isby's motion for a directed finding the trial court, by order entered December 9, 1982, held that the August 12, 1981, quit-claim deed was a valid deed of conveyance. The court found that although there was a close relationship between Shedrick and Isby, there was no breach of a fiduciary relationship or evidence of overreaching. The court ordered that (1) Isby is entitled to immediate possession of the property; (2) Isby is entitled to all rentals since August 12, 1981, offset by expenses and by the monthly installment payment to the estate; and (3) Isby shall pay the balance of the purchase price to the estate in monthly installments of $405 each. The executor appeals.

OPINION

The first issue raised is whether the deed was properly delivered and accepted. Before addressing this issue we must, however, consider whether the existence of a completed certificate of acknowledgment obviates the requirements of delivery and acceptance. See Newton v. Village of Glen Ellyn (1940), 374 Ill. 50, 27 N.E.2d 821.

• 1 A certificate of acknowledgment is evidence of the proper execution of an instrument by the persons named therein (Shadden v. Zimmerlee (1948), 401 Ill. 118, 81 N.E.2d 477; Curtis v. Curtis (1947), 398 Ill. 442, 75 N.E.2d 881; People ex rel. Cohen v. Barrett (1953), 349 Ill. App. 236, 110 N.E.2d 452) and permits the offering of a deed into evidence without further showing as to its genuineness (Zilvitis v. Szczudlo (1951), 409 Ill. 252, 99 N.E.2d 124). Although courts> will presume that deeds duly acknowledged and recorded have been delivered and accepted, this presumption is rebuttable, not conclusive. (Stanforth v. Bailey (1931), 344 Ill. 38, 175 N.E. 784; Talty v. Schoenholz (1926), 323 Ill. 232, 154 N.E. 139.) Thus, the existence of an acknowledgment does not obviate the requirements that a deed be delivered and accepted to render it operative to pass title. It is proper, therefore, to consider the parties' contentions in this regard.

The executor contends that Isby failed to accept the conveyance of the subject property during Shedrick's lifetime and argues that there was, therefore, no valid conveyance. Isby asserts that his acceptance and possession of the ...


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