Copeland v. Copeland
| Citation | 16 Ill.2d 11,156 N.E.2d 524 |
| Decision Date | 23 January 1959 |
| Docket Number | No. 34843,34843 |
| Parties | Julius COPELAND et al., Appellees, v. Harvey H. COPELAND et at. (Melvin Zarbin et al., Appellants.) |
| Court | Supreme Court of Illinois |
Schuyler, Stough, Richert & Morris, Chicago (Daniel M. Schuyler, Jay Stough, Chicago, and Joseph R. Julin, Evanston, of counsel), for appellants.
Mayer Goldberg, Leonard L. Levin, Charles F. Grimes, William B. Garrett, and James W. Bayer, Chicago, for appellees.
This action was commenced in the superior court of Cook County on November 17, 1954, by Julius Copeland, the owner of an undivided 2/3 interest in two lots located in the city of Chicago, to partition the property and to remove as a cloud upon title certain adverse interests arising by reason of a recorded quitclaim deed outside plaintiff's chain of title, and from a claim of easement asserted by the owners of neighboring property. Harvey H. Copeland, plaintiff's cotenant; Melvin Zarbin, the grantee named in said quitclaim deed; Lake Shore National Bank, the trustee holding legal title to the neighboring property; Pritikin Furniture Company, a partnership, the lessee of the neighboring property; and Sarah Zarbin Pritikin, Renee Pritikin Martin, Harry Zarbin, Richard Zarbin, and Gloria Zarbin, the equitable owners of the neighboring property, were all made parties defendant to these proceedings. The matter was referred to a master in chancery who found that none of the defendants except the cotenant has any interest or claim in the Copeland lots and that the premises should be partitioned in accordance with the prayer of plaintiff's complaint. From a decree confirming the master's report, direct appeal has been taken to this court.
For the sake of convenience the subject property will hereinafter be referred to as Tract A and the neighboring property as Tract B. The former tract, consisting of lots 132 and 133 in Crane and Wesson's Subdivision of the city of Chicago, fronts for a distance of 48 feet along the south side of West Grenshaw Street, an east-west public thoroughfare, and extends back some 83 feet to an east-west public alley which adjoins it on the south. The tract is bounded on the east by another 10-foot alley, this one running north and south, and on the west by a private residence. Tract B, being comprised of lots 135 through 140 of the same subdivision, lies on the east side of said north-south alley immediately across from Tract A and is bounded on the south by West Roosevelt Road (an eastwest street), on the east by South Morgan Street, and on the north by a private residence which separates it from West Grenshaw Street. Tract A is unimproved except for concrete surfacing upon the easterly half thereof, and the east half of the curbing along West Grenshaw Street has been broken to allow vehicle access from the street to this property. Tract B on the other hand is improved with a five-story brick commercial building having large entrances thereto both on West Roosevelt Road and on South Morgan Street and with two 17-foot loading docks and one 7-foot loading elevator located on the north-south alley immediately across from Tract A. The loading docks are actually interior passageways wide enough for a truck to enter and which extend from the alley some 25 feet into the building.
Tract B was acquired by Associated Mercantile Company, an Illinois corporation, on November 3, 1926, and was immediately improved with the five-story building. On March 1, 1927, the corporation acquired lot 133, being the easterly half of Tract A, and on February 2, 1928 purchased the remainder of the tract. Thereafter, Tract B was used for commercial purposes until June 16, 1932, upon which date an involuntary petition in bankruptcy was filed against the corporation. In the schedule filed in the proceedings, the bankrupt correctly listed Tract B among its assets but for unknown reason did not include Tract A, and as a result thereof no administration was ever had upon the latter parcel. While the bankruptcy action was pending, suit was commenced in the circuit court of Cook County by a mortgagee to foreclose a mortgage which had been given by Associated Mercantile Company solely upon Tract B and, pursuant thereto, Tract B was subsequently sold by the master-in-chancery to Frank C. Rathje, who acquired his deed on June 7, 1935. Meanwhile, however, Associated Mercantile Company had been involuntarily dissolved on May 11, 1933, Tract B had been sold by the trustee in bankruptcy to a Charles Levy some three months later, and on March 27, 1934, the bankruptcy proceedings were closed and the trustee fully discharged. By mesne conveyances, record title to Tract B was subsequently vested in Lake Shore National Bank, a present defendant.
Despite the aforesaid events, record title to Tract A remained in the name of Associated Mercantile Company until February 13, 1940, upon which date an action was commenced in the name of the People of the State of Illinois to foreclose a general tax lien existing against said property for unpaid taxes from 1929 to 1938, both years inclusive. Associated Mercantile Company, 'formerly a corporation of Illinois,' was made a defendant to these proceedings, and the shareholders of said corporation, their spouses, and all other persons having or claiming to have an interest in these premises were joined therein as 'Unknown Owners,' all of said parties being duly served by publication. Requisite affidavits as to unknown owners and for publication were filed showing that diligent inquiry had been made to determine the name of said individuals, and by a decree of foreclosure subsequently entered therein it was found that all of said parties were subject to the jurisdiction of the court. Pursuant to such decree, Tract A was sold on May 9, 1940, to Joseph H. Platt, and at a supplemental proceeding held in the circuit court on May 19, 1942, it was found that diligent inquiry had been made to determine the identity of all persons having an interest in said property, that the term 'Unknown Owners' included all shareholders of the dissolved corporation, their spouses, and 'all persons living or dead whose names are unknown and who do or may claim some right, title or interest in, or lien upon the above described real estate or some part thereof.' The decree further found that all requirements for a tax deed had been fully met and ordered the issuance of such a deed to Julius Copeland, the present plaintiff, as assignee of Joseph H. Platt.
Upon receiving his tax deed, plaintiff continued to pay taxes upon the vacant property unitl February 7, 1952, at which time he took open possession of the premises by erecting a large sign upon the wall of the house immediately adjacent to the west boundary line of Tract A, the sign stating, among other things, that plaintiff was the owner and that trespassers would be prosecuted. Thereafter, in June, 1952, plaintiff caused concrete piers to be erected within the property lines on the northern and eastern borders of lot 133, being the east half of Tract A, so as to extend some two feet below and twenty-eight inches above the ground level and with a distance of approximately four feet between each pier. About seven months later a petition to reopen the Associated Mercantile Company bankruptcy case and to schedule and administer Tract A as a bankruptcy asset, was filed by a former creditor thereof, with the knowledge and consent of Melvin Zarbin and other defendants herein. Without notice to plaintiff, a new trustee in bankruptcy was appointed and the property was sold by him to Robert Pressman on November 12, 1953, 'subject to unpaid mortgages, unpaid general and special taxes.' Pressman in turn conveyed his interest to defendant Melvin Zarbin on December 2, 1953, and just five days later Zarbin employed five workmen to go upon Tract A and remove the concrete piers, but before the demolition was completed, plaintiff appeared upon the scene and caused the operation to cease. Prior to instituting the present action, plaintiff conveyed an undivided 1/3 interest in Tract A to defendant Harvey H. Copeland.
Melvin Zarbin now contends that his title, derived through the reopened bankruptcy proceedings, is superior to that acquired by plaintiff in the tax foreclosure action, and the other defendants, except Harvey H. Copeland, claim that Tract A was used as a means of access to the loading docks on Tract B, both at the time of their common ownership by the corporation and subsequent thereto, with the result that they acquired an easement by either prescription or implication over the subject parcel.
At the hearing before the master, Morris Chapman, manager of the commercial building located on Tract B, testified that since he assumed his managerial duties in 1937, he occasionally drove his automobile to the loading docks, and in making the turn from West Grenshow Street into the north-south alley, his tires 'would slip off onto Lot 133.' Another defense witness, Louis Paskind, pointed out that the commercial structure was built on Tract B in 1926 and that Associated Mercantile Company paved lot 133 'on account of trucks backing into * * * the loading platform.' As he explained it, trucks pulling into the alley from West Grenshaw Street frequently scraped the side of the residence situated at the alley entrance, and to avoid this, many drivers swerved onto lot 133 at this point. Louis Sacks, while employed by Associated Mercantile Company during 1927 and 1928, observed that the trucks would usually back into the alley from West Grenshaw Street and then pull ahead with their front wheels on lot 133 so as to back straight into the loading docks. Since 1934 to the present date he also noted that the same practice was observed. Jacob Zarobinsky, another defense witness, worked for Pritikin Furniture Company 1932 to 1937 as a driver. He stated that his truck was...
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