Robinson v. Chicago Nat. Bank

• Decision Date: 30 June 1961
• Docket Number: Gen. No. 48322,L,No. 5199,5199
• Citation: 176 N.E.2d 659,32 Ill.App.2d 55
• Parties: Beatrice ROBINSON, Plaintiff-Appellant, v. CHICAGO NATIONAL BANK, Trustee under Trusteo Goldman, Beneficiary under the Trust, and Sol Shapiro, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 659

176 N.E.2d 659

32 Ill.App.2d 55

Beatrice ROBINSON, Plaintiff-Appellant, v. CHICAGO NATIONAL BANK, Trustee under Trust No. 5199, Leo Goldman, Beneficiary under the Trust No. 5199, and Sol Shapiro, Defendants-Appellees.

Gen. No. 48322.

Appellate Court of Illinois, First District, Second Division.

June 30, 1961.

Gomberg, Levin & Gomberg, Chicago, Sidney Z. Karasik, Chicago, of counsel, for appellant.

John J. Sullivan, Chicago, Gerald M. Chapman, Chicago, of counsel, for appellees.

BURKE, Justice.

On January 9, 1959, Beatrice Robinson filed a complaint to recover damages for personal injuries alleged to have been sustained on October 11, 1957, in an apartment building in Chicago, title to which was held in trust by the Chicago National Bank as trustee under a trust agreement. The bank moved to dismiss contending that as the holder of the naked title it did not operate, possess or control the premises. On April 8, 1959, the bank answered interrogatories, stating that Leo Goldman was the beneficiary of the trust and that Sol Shapiro was the manager of the building. On November 20, 1959, slightly more than a month after the two-year Statute of Limitations had run, plaintiff obtained leave to file an amended complaint adding Goldman and Shapiro as additional parties defendant. The additional defendants were served on December 10, 1959, and filed a motion to dismiss, alleging that the action was barred by the Statute of Limitations. Plaintiff, by counteraffidavit, asserted that Sec. 46(4) of the Civil Practice Act, Ill.Rev.Stat.1959, c. 110, § 46(4) applied to defeat this defense. The court entered judgment in favor of all the defendants, whereupon plaintiff appealed. She concedes the correctness of the judgment in favor of the bank as trustee.

The amended complaint alleges that the trustee held naked title to the premises as the agent of Goldman, who was the equitable owner, operating, possessing and controlling the apartment building which was managed by the defendant Shapiro as the agent of Goldman and the trustee. Except for the allegations as to parties, the complaint and amended complaint are identical both claiming that the defendants negligently permitted the carpet and rubber mat on the stairway to become torn, loose and otherwise in bad condition, and the lights to become inoperative. On deposition Shapiro testified that his primary duty with respect to the building was the collection of rents. When the tenants contacted him about conditions in the building he referred them to the janitor or to Goldman.

The land trust is a device by which the real estate is conveyed to a trustee under an arrangement reserving to the beneficiaries the full management and control of the property. The trustee executes deeds, mortgages or otherwise deals with the property at the written direction of the beneficiaries. The beneficiaries collect rents, improve and operate the property and exercise all rights of ownership other than holding or dealing with the legal title. The arrangement is created by two instruments. The deed in trust conveys the realty to the trustee. Contemporaneously with the deed in trust a trust agreement is executed. The pertinent provisions of the trust agreement are summarized as follows: While legal title to the real estate is held by the trustee, the beneficiaries retain 'the power of direction' to deal with the title, to manage and control the property, to receive proceeds from sales or mortgages and all rentals and avails on the property. The trustee agrees to deal with the res of the trust only upon the written direction of the beneficiaries or the persons named as having power of direction, in this case, Leo Goldman. The trustee is not required to 'inquire into the propriety of any direction' received from the authorized persons. The trustee has no duties in respect to management or control of the property or to pay taxes, insurance or to be responsible for litigation. The only specified duties upon the trustee are to 'execute deeds or otherwise deal with the property upon the direction of the beneficiary or other named authorized persons.' Another duty of the trustee is to sell at public auction any property remaining in the trust twenty years from the date of the agreement. The beneficiaries agree to indemnify the trustee for any expenses or outlays incurred by the trustee on account of holding legal title, including cases in which the trustee is a party to any litigation. The agreement forbids its recordation in the Recorder's Office or elsewhere and forbids the trustee to disclose the name of any beneficiary. The Illinois courts have construed the land trust as an active trust and therefore not affected by the Statute of Uses.

One of the attorneys for plaintiff in an affidavit explained his 'inadvertence' in failing to add as defendants Goldman and Shapiro before the running of the Statute of Limitations. Upon receipt of the answers to the interrogatories, the file was pulled out, the answers attached and the file placed upon his desk. The file remained upon his desk for an undetermined period estimated at about two months. Thereafter the file was placed in his brief case for the purpose of taking it home to be worked upon. The file remained in the brief case. Thereafter the brief case was on occasion taken home but the file was never worked on. When plaintiff called her attorney in November, 1959, the omission to file the amended complaint was noted and immediate action taken. The defendants Goldman and Shapiro had notice of the pendency of the suit before they were joined as defendants and prior to the expiration of the Statute of Limitations. The trial judge concluded that the action was not commenced against Goldman and Shapiro within the time limited by law, and that Sec. 46(4) was not applicable to the amended complaint on the ground that clauses (b) and (c) thereof were not complied with.

Plaintiff insists that her cause of action against Leo Goldman, the beneficiary, and Sol Shapiro, the building manager, is not barred by the Statute of Limitations because the five conditions precedent of Sec. 46(4) of the Civil Practice Act are satisfied. There is no dispute that the requirements of clauses (a), (d) and (e) were met. We turn to a consideration of plaintiff's contention that the failure to join Goldman and Shapiro before the Statute of Limitations expired was 'inadvertent.' By clause (b) plaintiff was required to establish that her failure to join Goldman and Shapiro or either of them as a defendant was inadvertent. She states that the 'inadvertence' relates to the time when the original action was commenced, not her conduct afterward. She asserts that to give effect to the enablement of post-limitations joinder provided by Sec. 46(4) it must be concluded that it is inadvertence of non-joinder at the time of the original action which suspends the limitations, and that once suspended the limitations remain suspended, provided all the conditions of paragraph (4) are satisfied. ...