Cole v. Guy

• Decision Date: 22 May 1989
• Docket Number: No. 88-1408,88-1408
• Citation: Cole v. Guy, 539 N.E.2d 436, 183 Ill.App.3d 768 (Ill. App. 1989)
• Parties: , 132 Ill.Dec. 126 Neil COLE, individually, and Neil Cole as Executor of the Estate of Paul C. Zimmerman, deceased, Plaintiff-Appellee, v. Dorothy GUY, Personal Representative of the Estate of Clifton Harper, Deceased, Dorothy Guy, Individually, Lendel Harper, Elizabeth Louise Humphrey, Denise Bhimani, Jeanne Vaughn and Dottie Kumorek, Defendants-Appellants.
• Court: Appellate Court of Illinois

Page 436

539 N.E.2d 436

183 Ill.App.3d 768, 132 Ill.Dec. 126

Neil COLE, individually, and Neil Cole as Executor of the Estate of Paul C. Zimmerman, deceased, Plaintiff-Appellee, v.Dorothy GUY, Personal Representative of the Estate of Clifton Harper, Deceased, Dorothy Guy, Individually, Lendel Harper, Elizabeth Louise Humphrey, Denise Bhimani, Jeanne Vaughn and Dottie Kumorek, Defendants-Appellants.

No. 88-1408.

Appellate Court of Illinois First District, First Division.

May 22, 1989.

Andrew J. Creighton, Allen D. Freidman, Chicago, for defendants-appellants.

Zaban, Jacobs & Mayer, Chicago (Marc S. Mayer, Alan Jacobs, of counsel), for plaintiff-appellee.

Justice QUINLAN¹delivered the opinion of the court:

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 1709N. 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 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, that 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 Zaslavsky, an attorney, as one of his witnesses.Zaslavsky testified that Clifton Harper told him in October 1974 that he, Harper, wanted to sell the Dayton properties for $10,000.Zaslavsky mentioned the proposed sale to plaintiff and Zimmerman, who decided to purchase the properties.Zaslavsky then handled the legal aspects of the transaction for the parties.

Zaslavsky 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 Zaslavsky 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.Zaslavsky also testified that plaintiff and Zimmerman might not have recorded their deed in order to avoid receiving housing court citations.Zaslavsky 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, Zaslavsky 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 Zaslavsky'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 that he was completely unaware of any problems regarding ownership of the Dayton properties until his brother died in 1986.

Reanna Smith, a tenant of 1707N. Dayton since 1972 also testified for plaintiff.She said that Clifton Harper was her landlord from 1972 until October 1974, when Harper informed her that he had sold the building to plaintiff and Zimmerman.Following this conversation with Harper, Smith never again paid rent to Harper and instead paid the rent each month to plaintiff and Zimmerman.Smith also said that she had never seen any of the defendants at the building, nor had she ever paid any rent to them.

Plaintiff next called Dorothy Guy, the daughter of Clifton and Pearl Harper and a defendant in this case, as an adverse witness.She testified that her parents moved to Kentucky around November 1974 and purchased a home, which they paid for with cash.Her parents both died in Kentucky without ever returning to Chicago.Mrs. Guy said that she was appointed administrator of her father's estate and also admitted that when she filed the inventory of his assets on January 24, 1986, she had said it was "a full true and complete inventory," and she had not listed the Dayton properties in that inventory.In addition, Mrs. Guy stated that when she signed the final settlement for her father's estate, she did not mention the Dayton properties in that settlement.She also testified that she had never discussed what had happened to the Dayton properties with her father and admitted that she never took any action regarding the properties after her father died, even though she had claimed in her answer to one of plaintiff's interrogatories that Clifton told her in 1984 or 1985 that he still owned the Dayton properties and that he still had the deeds to the properties.Finally, Mrs. Guy testified that she had never paid real estate taxes or insurance on the Dayton properties and also had never done any maintenance to the properties or collected any rent from the tenants of the properties.

Larry Guy, Dorothy Guy's son, was then subpoenaed by plaintiff to testify concerning an out-of-court statement that he had made.Larry Guy testified that he had, in fact, said that his father Roy told him that Clifton Harper had sold the Dayton properties for $18,000.However, Guy claimed that his father had actually been referring to his aunt's house in Kentucky and he had mistakenly thought that his father was referring to the Dayton properties.

The plaintiff also presented evidence that Zaslavsky had ordered a title commitment on the Dayton properties on October 17, 1974 which named plaintiff as the proposed insured.He introduced into evidence the tax bills and receipts for the Dayton properties, the cancelled checks and check stubs for the payments related to the Dayton properties, and a rent receipt book which included rents received from the Dayton properties.Furthermore, the plaintiff proffered insurance policies that he and Zimmerman had purchased on the Dayton properties which named himself and Zimmerman as the insureds.Finally, plaintiff introduced his tax returns from 1973 to 1986, which showed that he claimed a deduction on his income tax for depreciation on the Dayton properties beginning in 1974.

The defendants moved for a directed verdict at the close of plaintiff's case.The trial court denied the motion.The defendants then recalled Dorothy Guy.Mrs. Guy, testifying on her own behalf, claimed that her father never said that he sold the Dayton properties.Mrs. Guy said her father gave her some personal papers,...