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11/06/96 VICTOR T. WOOD AND EMILY M. WOOD v. SANDRA

November 6, 1996

VICTOR T. WOOD AND EMILY M. WOOD, PLAINTIFFS-APPELLANTS,
v.
SANDRA D. WOOD, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Mason County. No. 95LM18. Honorable Thomas L. Brownfield, Judge Presiding.

Released for Publication November 6, 1996. As Corrected January 2, 1997.

Honorable Robert W. Cook, P.j., Honorable Robert J. Steigmann, J. - Concur, Honorable James A. Knecht, J. - Concur. Presiding Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

Victor and Emily Wood are the parents of George Wood. They brought this forcible entry and detainer action to evict Sandra Wood (their daughter-in-law) from the home in which she and George had both lived until she obtained an order of protection against him. Victor and Emily claim a right to possession through a quitclaim deed George executed and gave them two days before the marriage. The deed was given in exchange for their forgiveness of a debt George owed them. The trial court found the sale a sham, held title never passed from George to his parents, and accordingly entered judgment for Sandra on the forcible entry and detainer action. Victor and Emily appeal. We affirm.

I. BACKGROUND

George and Sandra Wood were first married in October 1990 and divorced in March 1995. George received sole possession and ownership of their residence in that dissolution. On April 20 or 21, approximately six weeks later, Sandra moved back in with George and agreed to remarry him. She testified she only did so because it was easier than enduring the constant harassment to which George was subjecting her. They remarried on April 28.

However, two days before the remarriage, George was fired. That same day he executed a quitclaim deed conveying the residence to Victor and Emily. George signed the deed before a notary public, who completed an acknowledgment clause. Both the deed and the acknowledgment clause were executed in the presence of Victor and Emily. After the documents were filled out, George gave Victor and Emily the deed, and they took it home and put it in their safe. Neither ever visited the house after they bought it; Victor testified that he could not enter the house because "the judge wouldn't let [him]."

The deed was not recorded until June 12. Victor testified he waited to file the deed because the mortgage on the property provided that title could not be transferred until the mortgage was paid off, and the delay was caused by the processing time for him to get a home equity loan on his home with which to pay off George's mortgage. George and his parents testified that in exchange for the house they agreed to pay the approximately $8,000 balance due on the mortgage and forgave a debt of over $8,000 he owed them.

Victor testified he and George further agreed that George and Sandra would rent the house from him and would start paying rent when George found work. George had not done so by August 22, the date of the hearing in this case. George testified he did not know when he was going to start paying rent, nor how much the rent would be. He said there was an understanding that Victor would never rent the house to anyone else as long as George was living there with Sandra. However, he said Victor could have evicted him at any time after April 26.

Sandra testified that before their remarriage George told her that once they married the house would be theirs together, and he never mentioned having sold the house to his parents. She also testified that on May 19, she and George went to Heights Finance Company and paid the mortgage payments for May and June. George admitted he took Sandra to make a payment on that date and that he had sold his Corvette to come up with the money.

On June 2, Sandra obtained an emergency order of protection against George, which, inter alia, granted her exclusive possession of their residence. Sandra signed a criminal complaint against George for violation of the order at some point after June 2. She was unsure of the exact date on which she did so, but remembered it was very near the time his parents first started attempting to evict her.

Victor and Emily served Sandra with a "Landlord's Seven[-]Day Notice of Termination of Tenancy" on June 14. On July 6, they served her with a "Demand for Possession of Premises." On July 19 they filed the instant complaint under the Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West 1994)). The complaint admitted Sandra came upon the premises peaceably but alleged she was in possession without permission, by lease or otherwise, paid no rent, and "wrongfully withholds possession from the Plaintiffs."

There was a hearing on Victor's and Emily's complaint on August 22. Victor and Emily asserted ownership and right to possession through the quitclaim deed, while Sandra defended on the grounds the alleged sale from George to his parents was a "fraud and sham," because there was no intent that ownership truly pass. In addition to testimony by Victor, Emily, George, and Sandra, James Hutchinson testified that on July 3 George showed him some sort of deed relating to the residence in question, and said it was George's house, and he was going to get it back. He did not know the date on the paper. The trial court, after hearing the evidence, directed the parties to submit closing arguments in writing and informed them that its opinion was that the outcome of the case depended ...


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