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Krohn v. Arthur

November 20, 1998

ANNE C. KROHN, AS TRUSTEE UNDER DECLARATION OF TRUST DATED DECEMBER 16, 1991, PLAINTIFF-APPELLEE,
v.
JAMES K. ARTHUR AND JOAN M. ARTHUR, DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: Justice Greiman

Appeal from the Circuit Court of Cook County

Honorable Thomas A. Hett, Judge Presiding.

Plaintiff Anne C. Krohn and defendants James K. Arthur and Joan M. Arthur are neighbors, their lands being separated by a parcel of land measuring approximately 16 feet by 100 feet (hereinafter parcel). In 1992 plaintiff purchased the parcel and subsequently filed a complaint, seeking in part to eject defendants, who had erected a fence on the parcel in 1972. By summary judgment, the trial court granted title to plaintiff and ejected defendants.

On appeal, defendants maintain that the 20-year statute of limitations for the recovery of lands under section 13-101 in the Illinois Code of Civil Procedure (735 ILCS 5/13-101 (West 1992)) bars plaintiff's action to eject defendants from the parcel that was registered under the now-repealed Registered Titles (Torrens)Act (Torrens Act) (765 ILCS 35/1 et seq. (repealed effective January 1, 1992)). In addition, plaintiff asserts that defendants' appeal is moot because the fence has been removed by them pursuant to court order.

We first hold that this appeal is not moot because the removal of the fence did not resolve the issue regarding the ownership of the parcel. We affirm the summary judgment order in favor of plaintiff and find that the section 13-101 limitations period did not commence until the parcel was released from its registration under the Torrens Act.

In July 1902, the North Shore Country Club (club) owned the parcel and registered it in Torrens. About 1958, plaintiff purchased her residence and in 1972 defendants purchased their residence.

In November 1972, defendants erected a chain-link fence that extended into the parcel, with the authority provided by John Giltner Twist, the president of the club. In March 1973, Twist requested defendants to move the fence back to their property line. Defendants did not remove the fence.

On April 30, 1992, plaintiff purchased the parcel from the club and received a quit claim deed, which was recorded with the Cook County recorder of deeds on July 20, 1992. Prior to the recording of the deed by plaintiff, the parcel was registered under the Torrens system. On August 14, 1992, plaintiff requested that defendants remove the fence and defendants declined the request in writing on August 21, 1992.

On August 25, 1993, plaintiff filed a complaint to quiet title. On February 1, 1995, plaintiff filed a second amended complaint for a declaratory judgment (count I), mandatory injunction (count II) and ejectment (count III). Count I asked that plaintiff be declared the absolute owner of the property and that defendants be declared to have no interest in the property. Count II sought an order requiring defendants to remove the fence and be permanently enjoined from constructing or maintaining any type of improvement on the property. Count III asked that defendants cease withholding from plaintiff the possession of the property.

In response to plaintiff's second amended complaint, defendants filed an answer and raised five affirmative defenses: laches, unclean hands, equitable estoppel, adverse possession, and the statute of limitations provided in section 13-101. Thereafter, plaintiff filed an answer to defendants' affirmative defenses. Regarding the statute of limitations defense, plaintiff stated "that pursuant to the provisions of the Illinois Torrens Registration Act, the twenty year period described in the Statutes of Limitations referenced by Defendant did not commence until July 20, 1992." This was the date plaintiff's deed was recorded.

On August 28, 1997, plaintiff filed a motion for summary judgment. Following a hearing, the trial court granted plaintiff's motion for summary judgment as to all three counts. The order states as follows:

"1) Summary judgment is granted in favor of Plaintiffagainst Defendants as to Counts I, II and III of Plaintiffs'Second Amended Verified Complaint

2) Plaintiff is declared to be the owner of the parcelin question and Defendants are declared to have no interestin ...


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