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July 13, 1992

RAYMOND J. BELZESKI; MARK RICHARDSON BELL, Individually and as Administrator of the Estate of Raymond J. Bell, deceased; HOLLY MILLS; and KIRK DANIEL BELL, Defendants.


The opinion of the court was delivered by: PAUL E. PLUNKETT

This case is already almost two years old, yet only now are some of the crucial facts coming to light. In essence, the Plaintiffs, Robert Miguel and his wife Jean Miguel ("the Miguels"), are seeking to recover in damages for the improper delivery of quitclaim deeds executed by them in favor of Raymond Bell, who is now deceased. *fn1" The deeds at issue are for a vacant lot in Chicago. The Defendants are Bell's heirs, who took title to the lot upon his death. Before us today is Defendants' Motion for Summary Judgment. For the reasons that follow, we deny Defendants' motion.


 This tortured tale began in April 1975 when a relative of Mr. Miguel was arrested, and Mr. Miguel decided to procure a bond on his behalf. According to Mr. Miguel and his wife, who joins him as a plaintiff in this action, Mr. Miguel approached a bail bondsman James Cosentino. Mr. Miguel and Mr. Cosentino struck a deal in which Mr. Miguel would give Mr. Cosentino $ 5000 and quitclaim deeds *fn2" to a Chicago property *fn3" made to a Raymond Bell as collateral for the $ 50,000 bond. Mr. Miguel's apparent understanding was that the quitclaim deed would only be turned over to Mr. Bell if the bond was forfeited. It is uncontroverted that Mr. Miguel dealt exclusively with Mr. Cosentino and never had any dealings of any kind with Mr. Bell. (Defs.' Rule 12(m) Stmt. P 10.)

 In either 1975 or 1976 Mr. Miguel's relative was exonerated and the bond amount returned to whomever issued the bond. Although there is no dispute that the bond was never forfeited, it appears that Mr. Cosentino gave the quitclaim deeds to Mr. Bell sometime prior to September 1975 for in that month Mr. Bell recorded them. The two recorded deeds, which concern a single piece of property, are stamped with exemptions for the state and city transaction taxes. *fn4"

 Mr. Miguel claims that he did not know until recently of Raymond Bell's recordation of the deed and that he has been billed for and has paid real estate taxes on the property during the time in question. *fn5" Both parties agree that Mr. Miguel contacted Mr. Cosentino repeatedly once his relative was exonerated seeking the return of the deeds, all of course to no avail. (Id. PP 12-16.)

 Raymond Bell died in 1981 in Indiana, which is where his estate was probated. (Id. P 3.) The Defendants are his four heirs who took title to the property at his death. (Id. P 4.) Mark Bell is being sued both in his individual capacity and in his capacity as administrator of the estate of Raymond Bell. In February 1989 the Defendants deeded the property at issue to a trust at Chicago Title and Trust Company ("Chicago Title") (trust number 1092665). According to Robert Miguel, he was contacted around this time regarding his interest in the property and, through this contact, became aware of Raymond Bell's recordation of the quitclaim deeds. (Pls.' Resp. at 2.) In September 1989 Chicago Title transferred title to First Illinois Bank and Trust ("First Illinois") under trust number 9529; First Illinois subsequently transferred title to NBD Trust Company of Illinois as trustee under trust number 6018. In March 1990 Harris Bank/Glencoe-Northbrook took a mortgage interest in the lot. (Defs.' Rule 12(m) Stmt. PP 18-21.)

 In October 1990 the Miguels filed a complaint to quiet title to the lot. They named as defendants all titleholders who took title subsequent to Raymond Bell's death in 1981. *fn6" This Court dismissed the action for want of prosecution on May 9, 1991, when the Plaintiffs failed to respond to the Defendants' Motion for Judgment on the Pleadings. We vacated this dismissal by an October 18, 1991 Memorandum Opinion and Order. On November 12, 1991, the Plaintiffs filed a Second Amended Complaint seeking not to quiet title, but to recover in damages from Bell's estate and heirs for the 1989 sale of the property. This Second Amended Complaint states that the quitclaim deeds were "at all times void for lack of consideration, lack of legal delivery, were recorded fraudulently, and were of no effect to pass title to Raymond J. Bell." (Sec. Am. Compl. P 12.)

 Defendants now move for summary judgment on essentially four distinct grounds: (1) the 1975 quitclaim deeds are unconditional on their face and, therefore, absolute at law as a conveyance to Raymond Bell; (2) Miguel's dealings were exclusively with Cosentino, consequently no fraud claim existed against Raymond Bell during his lifetime and no derivative claim exists against the heirs after Bell's death; (3) any claim that the Plaintiffs conceivably had was extinguished by the nonclaim statute of the Indiana Probate Code; (4) Plaintiffs' claim is barred by Illinois' five year statute of limitations.


 For defendants to prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). At this stage, we do not weigh evidence or determine the truth of asserted matters. We simply determine whether there is a genuine issue for trial, i.e. "whether a proper jury question was presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). If the nonmoving party bears "the burden of proof at trial on a dispositive issue, [however] . . . the nonmoving party [is required] to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56 (e)).

 The Defendants argue strenuously that the quitclaim deeds executed by Mr. Miguel and duly recorded by Raymond Bell contain no conditions on their face and, therefore, cannot now be challenged. The Defendants are quite correct that an unambiguous deed is controlling where a claimant seeks to have extrinsic conditions recognized that would contradict or alter the legal effect of the deed. Department of Transp. v. Western Nat'l Bank, 63 Ill. 2d 179, 347 N.E.2d 161, 164 (1976). Indeed, courts are particularly reluctant to disturb long-standing land transactions. In this case, however, Plaintiffs have explicitly challenged the validity of the delivery of the deed to Mr. Bell. (Sec. Am. Compl. P 12.; Pls.' Resp. at 8.) Although we would be loathe to permit a challenge at this late date to the sufficiency of delivery based solely on the self-serving testimony of the grantor, we find that the Defendants in their Local Rule 12(m) Statement have adopted the Miguels' version of events insofar as the delivery of the deed to a third party is concerned. Indeed, the Defendants ratify through repetition Robert Miguel's statement that his only dealings were with Mr. Cosentino. (Defs.' Mem. Supp. at 4.)

 The fact that Defendants agree that Mr. Miguel never dealt with Mr. Bell directly raises squarely the problem of delivery of the deed. Proper delivery of a deed is essential to its validity. Huber v. Williams, 338 Ill. 313, 318, 170 N.E. 195 (1930) ("The delivery of a deed is an essential part of its execution and is indispensable to render it operative as a conveyance."); see also Kratovil & Werner, Real Estate Law § 7.03(l) (9th ed. 1988). Delivery is determined by the intention of the grantor as manifested by words and acts and the circumstances surrounding the transaction, and "unless the grantor intended to pass title no delivery occurs even though there has been a manual transfer of the deed." Rothenberg v. Rothenberg, 378 Ill. 242, 247, 38 N.E.2d 13 (1941); accord Fitzgerald v. Allen, 240 Ill. 80, 94, 88 N.E. 240 (1909) ("The intention of the grantor is the controlling element in respect to the sufficiency of the delivery of a deed in escrow."); Marshall v. Moon, 311 Ill. 605, 621, 143 N.E. 399 (1924) ("The grantor's motive is the controlling fact, and that intention is to be gathered from all the circumstances attending the transaction.").

 The general rule is that when the grantor has given the deed directly to the grantee, a valid unconditional delivery is presumed, Mitchell v. Clem, 295 Ill. 150, 157, 128 N.E. 815 (1920), and the only conditions to which the deed may be subject are those contained in that document itself. Logue v. Von Almen, 379 Ill. 208, 214, 40 N.E.2d 73 (1941). In this case, however, the Defendants admit that the deed was not delivered to the grantee, Raymond Bell, but was delivered instead to a third party, Mr. ...

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