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09/09/87 Tompkins State Bank, v. Donald R. Niles

September 9, 1987





Company, Defendant-Appellee)

513 N.E.2d 548, 160 Ill. App. 3d 226, 112 Ill. Dec. 134 1987.IL.1316

Appeal from the Circuit Court of Knox County; the Hon. Daniel J. Roberts, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, J., concurs. PRESIDING JUSTICE SPITZ, Dissenting.


This case concerns the operation of the disclaimer provisions contained in section 2 -- 7(e) of the Probate Act of 1975, which states in part:

"Waiver and Bar. The right to disclaim property or a part thereof or an interest therein shall be banned by (1) a judicial sale of the property, part or interest before the disclaimer is effected; (2) an assignment, conveyance, encumbrance, pledge, sale or other transfer of the property, part or interest, or a contract therefor, by the disclaimant or his representative; (3) a written waiver of the right to disclaim; or (4) an acceptance of the property, part or interest by the disclaimant or his representative." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 2-7(e).)

The precise question is whether the execution of a mortgage with covenants of title purporting to convey a full interest in realty when the mortgagors have only a right to purchase the property on contract, which right is subsequently forfeited to the vendor, bars a subsequent disclaimer by the mortgagors of a devise of the property from the vendor to the mortgagors. We hold that the reference to "conveyance, encumbrance . . . or other transfer" in section 2 -- 7(e) refers only to such transfers made after the interest being disclaimed has passed by devise, inheritance or otherwise to the person or entity attempting to disclaim.

On February 10, 1986, plaintiff, Tompkins State Bank, filed suit in the circuit court of Knox County seeking to foreclose a mortgage on certain real estate. Donald R. and Mary Ellen Niles, husband and wife, were named defendants as mortgagors, and Donald was also named a defendant in his capacity as executor of the estate of his mother, Mildred L. Niles Peterson (testator). Monmouth Grain and Dryer Company (Monmouth) was joined as a defendant claiming a lien on the allegedly mortgaged premises by virtue of a judgment against Donald. The other defendants were persons who might have an interest in the premises purportedly covered by the mortgage if a devise of those premises by the testator to Donald failed.

Monmouth filed an answer and a cross-complaint against Donald, Mary Ellen and certain other of the defendants the purport of which was to establish the existence of a judgment lien against the mortgaged premises. Donald, individually and in his capacity as executor, and Mary Ellen filed a motion to dismiss both the original complaint and the cross-complaint. This motion was permitted to stand against amended pleadings by plaintiff and Monmouth. After a hearing, the court entered an order on November 24, 1986, denying the motion to dismiss. The movants stood on their motion and refused to plead over. They were defaulted, and, after a further hearing, the court entered a decree on December 10, 1986, (1) establishing the mortgage of plaintiff's as a first lien in the sum of $365,254.04; (2) establishing the judgment of Monmouth as a second lien against the premises in the sum of $10,044.63; and (3) ordering foreclosure and sale. Donald, in his individual capacity and as executor, Mary Ellen, Darron L. Niles, Melanie Sue Yates, and Thomas Pepmeyer, guardian ad litem for Daphne Niles and trustee for the unknown descendants of Donald, have all appealed. We reverse.

The propriety of the decree appealed depends upon the propriety of the denial of the motion to dismiss the amended complaint and cross-complaint. That motion presented the court with the following undisputed but very unusual set of facts. On August 18, 1977, the testator, owner of the realty described in the instant mortgage, entered into a contract to sell the realty to Donald and Mary Ellen, who were to make periodic payments. On April 25, 1983, Donald and Mary Ellen executed and delivered a mortgage of the above premises to plaintiff to secure several outstanding notes. The mortgage instrument contained a provision whereby Donald and Mary Ellen assigned all of their interest in the previously mentioned contract with the testator to plaintiff "as security for all obligations" due plaintiff. The equitable rights under that contract were the only rights in the fee of that real estate which Donald and Mary Ellen then possessed. Nevertheless, the mortgage also contained a provision whereby the mortgagors made covenants of title as to the property described in the mortgage.

The next undisputed significant event occurred on February 22, 1985, when the testator forfeited the interest of Donald and Mary Ellen in the contract for sale to them of the real estate, because Donald and Mary Ellen had violated a provision of the contract prohibiting assignments without consent of the vendor. The parties do not dispute the bona fide nature of the forfeiture and agree that Donald, Mary Ellen and all persons claiming through them lost all interest in that contract. However, the testator then died on June 7, 1985, leaving a will naming Donald as executor and giving all of her property to him with a further provision that, if he predeceased the testator, the property would be placed in a trust, with Mary Ellen being one of the beneficiaries of the trust. The will was admitted to probate on July 25, 1985, and on July 26, 1985, Donald filed a disclaimer with the Knox County circuit court and the recorder of deeds. Mary Ellen similarly filed a disclaimer on March 6, 1986. Meanwhile, on July 30, 1985, Monmouth obtained a judgment against Donald. Monmouth filed a memorandum of that judgment with the recorder of deeds of Knox County on October 7, 1985.

The contention of plaintiff is (1) because of the devise of the real estate by the testator to Donald, that real estate vested in him as of the date of the testator's death; (2) because of the covenants of title in the mortgage between Donald and Mary Ellen and plaintiff, plaintiff's mortgage lien reattached to the property at that time under the after-acquired-title doctrine; and (3) the execution and delivery of the mortgage by Donald and Mary Ellen to plaintiff on April 25, 1983, constituted a "conveyance, encumbrance . . . or other transfer" of the described real estate within ...

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