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05/22/89 Neil Cole, Indiv. and As v. Dorothy Guy

May 22, 1989

NEIL COLE, INDI

v.

AND AS EX'R OF THE ESTATE OF PAUL C. ZIMMERMAN, DECEASED, PLAINTIFF-APPELLEE,

v.

DOROTHY GUY, PERSONAL REPRESENTATIVE OF THE ESTATE OF



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

Clifton Harper, Deceased, et al., Defendants-Appellants

539 N.E.2d 436, 183 Ill. App. 3d 768, 132 Ill. Dec. 126 1989.IL.776

Appeal from the Circuit Court of Cook County; the Hon. Thomas O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN* delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Plaintiff, Neil Cole, brought an action individually and as executor of his deceased brother's estate in the chancery division of the circuit court of Cook County, seeking to quiet title to certain real estate. Cole claimed that he and his brother had purchased the real estate in 1974 from Clifton and Pearl Harper. Defendants, the heirs of Clifton and Pearl Harper, counterclaimed for possession of the real estate and for an accounting. Following a bench trial, the circuit court entered judgment for plaintiff. Defendants then appealed that judgment to this court. We now affirm.

The real estate at issue in this case is located at 1707 and 1709 N. Dayton in Chicago (Dayton properties). Plaintiff alleged in count I of his second amended complaint that Clifton and Pearl Harper purchased the Dayton properties in 1971 as joint tenants and then sold the properties sometime in 1974 to plaintiff and his brother, Paul Zimmerman, for $10,000. The complaint stated that plaintiff and his brother received a warranty deed to the Dayton properties from the Harpers, but never recorded the deed and that the deed had been subsequently lost. Plaintiff also alleged that he and his brother, doing business together as Imperial Properties, paid all real estate taxes and insurance on the Dayton properties since 1974 and made various improvements to the properties during that time. Plaintiff further stated in count I of his second amended complaint that he and his brother had been in actual, open possession of the Dayton properties since 1974 and cited section 13-109 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13-709) as part of his assertions. Section 13-109 provides that one who is in actual possession of land under claim and color of title for seven successive years, and who has paid all taxes assessed on that land for seven successive years, shall be held to be the legal owner of the land to the extent and according to the purport of his paper title. (Ill. Rev. Stat. 1987, ch. 110, par. 13-109.) Finally, plaintiff concluded his contentions in count I by asking the court to decree that he, individually and as executor of Paul Zimmerman's estate, was the true and rightful owner of the Dayton properties, and to grant any other relief that the court deemed just.

Count II of plaintiff's second amended complaint again alleged that plaintiff and his brother had paid all real estate taxes and insurance on the Dayton properties and had paid for improvements on the Dayton properties, and that they had done so under a good-faith belief that they were the rightful owners of the properties. Plaintiff asserted that these expenditures would unjustly enrich the defendants if the court ruled that plaintiff was not the rightful owner of the properties. Therefore, the plaintiff requested as an alternative form of relief that if the court determined the defendants to be the true and rightful owners of the property, plaintiff be granted judgment against the defendants in the amount that he and his brother had expended for real estate taxes, insurance payments and improvements to the properties.

The defendants filed an answer and also a counterclaim, which requested possession of the Dayton properties and an accounting for all the rents collected on the properties. Thereafter, the case proceeded to trial, which was heard by the trial court without a jury.

The plaintiff presented Morton Zaslavky, an attorney, as one of his witnesses. Zaslavky testified that Clifton Harper told him in October 1974 that he, Harper, wanted to sell the Dayton properties for $10,000. Zaslavky mentioned the proposed sale to plaintiff and Zimmerman, who decided to purchase the properties. Zaslavky then handled the legal aspects of the transaction for the parties.

Zaslavky testified that he could not remember all the details of the transaction and could not locate anything in his files related to this transaction. The details that Zaslavky specifically remembered were that plaintiff gave him a certified check for $10,000, which he then gave to the Harpers, that the title to the Dayton properties was put in plaintiff's name only, and that he delivered the deed to plaintiff and Zimmerman, even though his usual procedure would have been to record the deed himself. Zaslavky also testified that plaintiff and Zimmerman might not have recorded their deed in order to avoid receiving housing court citations. Zaslavky explained that the practice in the neighborhood at the time when this transaction took place was to leave the former owner's name on the deed when buying an owner-occupied building, because city building inspectors usually did not cite owner-occupiers for housing violations.

Plaintiff also testified in the case. He said that in October 1974, Zaslavky told him about some property that was for sale for $10,000. Plaintiff and his brother, Zimmerman, decided to purchase the properties and, therefore, took a certified check for $10,000 to Zaslavky's office. The plaintiff and Zimmerman signed some documents, and in return they received the deed to the properties. After receiving the deed, plaintiff said that he and Zimmerman began performing repairs on the properties.

Plaintiff also stated that the deed to the Dayton properties was never recorded because he and Zimmerman wanted to correct some building code violations first and did not want to receive any citations before they could make the corrections. Plaintiff said that he had tried to obtain a copy of the certified check that had been given to the Harpers, but the bank informed him that it did not keep checks for more than seven years. In addition, the plaintiff testified ...


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