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01/26/89 Katheryn Scott, v. Katheryn Scott

January 26, 1989

KATHERYN SCOTT, PLAINTIFF-APPELLANT

v.

KATHERYN SCOTT, EX'R OF THE ESTATE OF DAVID L. SCOTT, DECEASED, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT 1989.IL.76

534 N.E.2d 174, 179 Ill. App. 3d 489, 128 Ill. Dec. 154

Appeal from the Circuit Court of Moultrie County; the Hon. Joseph C. Munch, Judge, presiding

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Plaintiff Katheryn Scott appeals a trial court order dismissing her complaint for foreclosure of an equitable lien. Plaintiff argues the trial court erred in finding she was the owner of the land in question by devise from her deceased husband and took it subject to encumbrances.

We affirm.

On June 29, 1987, plaintiff filed a complaint for foreclosure of an equitable lien on certain real estate. Plaintiff alleged that she had redeemed the premises which had been the subject of a foreclosure by Federal Land Bank on May 29, 1987; the redemption was evidenced by a certificate of redemption; the certificate of redemption, recorded on May 29, 1987, stated she was entitled to a first priority equitable lien on the premises. Plaintiff also alleged that she, as executor of David L. Scott's estate, was the owner of the premises, that David and Carol Scott made mortgages to the other defendants, which were subordinate to her equitable lien.

The certificate of redemption stated the real estate had been sold on December 1, 1986, pursuant to a judgment of foreclosure entered on October 23, 1986. Prior to expiration of the redemption period, plaintiff, individually, paid the purchase price plus interest to the clerk of the court. The court certified the property had been redeemed and declared the certificate of sale void and found the plaintiff had an equitable first priority lien on the real estate, which could be foreclosed in the same manner as any lien secured by a mortgage. Plaintiff is not individually liable on the promissory note signed in conjunction with the Federal Land Bank loan.

Defendants Joseph William Spencer, Joseph Wayne Spencer, and Anne Marie Owens moved to strike and dismiss the complaint alleging plaintiff, the widow of David L. Scott, was the owner of the premises at the time she redeemed.

The dates important to a determination of this appeal are:

March 10, 1985 Date of death, David Scott

March 27, 1985 Will of David Scott admitted to prob-

ate -- devised all real estate to, plaintiff

Federal Land Bank of St. Louis

October 23, 1986 Judgment of ...


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