Echols v. Olsen

• Decision Date: 29 March 1976
• Docket Number: No. 47636,47636
• Citation: 347 N.E.2d 720,63 Ill.2d 270
• Parties: Vernal ECHOLS, Appellee, v. Sidney OLSEN, Recorder of Deeds and ex officio Registrar of Titles, Appellant.
• Court: Illinois Supreme Court

Page 720

347 N.E.2d 720

63 Ill.2d 270

Vernal ECHOLS, Appellee, v. Sidney OLSEN, Recorder of Deeds and ex officio Registrar of Titles, Appellant.

No. 47636.

Supreme Court of Illinois.

March 29, 1976.

Rehearing Denied May 27, 1976.

Bernard Carey, State's Atty., Chicago (Sheldon Gardner, Deputy State's Atty., and Paul P. Biebel, Jr., Asst. State's Atty., of counsel), for appellant.

John S. Elson, of Mandel Legal Aid Clinic, Chicago (Sara A. Vannucci, Chicago, of counsel), for appellee.

WARD, Chief Justice:

What the facts are in this case is not in dispute. Vernal Echols, the petitioner, and her husband Valentine were joint owners of a lot in Chicago that was registered under 'An Act concerning land titles' (Ill.Rev.Stat.1973, ch. 30, pars. 45--148) (hereafter cited as the Torrens Act). On September 29, 1966, the circuit court of Cook County entered a decree of divorce in a suit that had been brought by the petitioner. Under the terms of the decree, the petitioner was required to pay her former husband $2,000 and he, in turn, was required to execute a quitclaim deed in her favor surrendering his interest in the lot. The petitioner's attorney recorded the quitclaim deed in the office of the Cook County Recorder of Deeds on October 18, 1966, but he failed at that time to register the deed with the Cook County Registrar of Titles (Registrar).

The Independence Bank of Chicago (the Bank) obtained in 1969 an Ex parte judgment in the amount of $1,058.67, against Valentine Echols. On January 21, 1971, the Bank had the judgment memorialized on the duplicate Torrens certificate that is maintained in the Registrar's office. As the petitioner had not registered the quitclaim deed, the duplicate certificate had shown Valentine and Vernal Echols as joint owners of the lot. On February 24, 1971, Vernal Echols filed a petition in the circuit court requesting the court to direct the Registrar to remove the Bank's memorial and to issue a new certificate showing title to be in the petitioner alone. Both the Bank and the Registrar were named as respondents. Ill.Rev.Stat.1973, ch. 30, par. 131.

The Bank moved to dismiss the petition contending that under the Torrens Act a judgment creditor who memorializes his judgment after the judgment debtor has conveyed his interest in property acquires an interest superior to that of a prior transferee who failed to register his deed. On August 4, 1971, the court ordered the Registrar to issue a new certificate of title showing title to be in the petitioner alone but showing that her interest was subject to the Bank's registered judgment.

The petitioer filed a notice of appeal to the appellate court on September 17, 1971, but she served a copy of it only upon the Bank. The petitioner and the Bank briefed and orally argued the case and the court reversed the trial court, holding that the Bank did not acquire an interest in the property since Valentine Echols had conveyed his interest to the petitioner before the judgment was memorialized. 10 Ill.App.3d 752, 755, 295 N.E.2d 319.

On learning of the decision, the Registrar moved the appellate court to dismiss the appeal for failing to provide him with notice of the appeal, or, in the alternative, to have the court withdraw its opinion and to permit him to file a brief and to argue his position, which was the same as the Bank's. The court did not withdraw its opinion but it did allow the Registrar to file a brief. After oral argument on June 4, 1975, by the petitioner and the Registrar, the appellate court on June 9, 1975, announced this order:

'On our own motion we allowed a rehearing. We have again allowed oral argument and considered the briefs that were filed. We find no merit in the request we dismiss the appeal. After thoroughly reviewing the case again, we are of the opinion our original decision was correct and we so hold. It is hereby ordered the rehearing is dismissed.'

We granted the Registrar's petition for leave to appeal under our Rule 315. Ill.Rev.Stat.1973, ch. 110A, par 315; 58 Ill.2d R. 315.

The Registrar makes two contentions here. He argues that under our Rule 303(d) (Ill.Rev.Stat.1973, ch. 110A, par. 303(d); 58 Ill.2d R. 303(d)) if one party fails to serve a copy of its notice of appeal on an opposing party, the appeal must be dismissed. He also makes the same contention the Bank did that a memorialized interest of a judgment creditor is superior to the interest of the holder of a prior unregistered deed.

Rule 303(d) provides:

'No later than 7 days after the notice of appeal or an amendment as of right is filed in the circuit court, the party filing it shall serve, in a manner provided by Rule 11, a copy of the notice of appeal and notice of the date of filing upon every other party and upon any other person or officer entitled by law to notice of the appeal. Proof of service must be filed within 7 days after service is made, and no action shall be taken until it is filed.'

However, a failure to serve a copy of a notice of appeal upon an opposing party does not deprive the court of appeal of jurisdiction. (See 6 C. Nichols, Illinois Civil Practice, secs. 6131, 6143--47 (1975); see generally, Francke v. Eadie, 373 Ill 500, 26 N.E.2d 853, National Bank of the Republic v. Kaspar American State Bank, 369 Ill. 34, 15 N.E.2d 721.) As our Rule 301 explicitly provides, the only jurisdictional step in appealing a final judgment of a circuit court in a civil case is the filing of the notice of appeal. Ill.Rev.Stat.1973, ch. 110A, par. 301; 58 Ill.2d R. 301; People ex rel. Pickerill v. New York Central R.R. Co., 391 Ill. 377, 63 N.E.2d 405; People ex rel. Sandberg v. Grabs, 373 Ill. 423, 26 N.E.2d 494.

We would note that there was no evidence of prejudice to the Registrar because of the failure to serve him. Prior to its original decision the appellate court had the benefit of the briefs and arguments of the Bank, which took a position that was similar to that of the Registrar. Further, the court granted a rehearing and allowed the Registrar to file briefs and to argue orally.

We must now consider whether under the Torrens Act, as the Registrar contends, a judgment creditor who has registered his judgment after the judgment debtor has conveyed his interest in the property acquires an interest superior to that of a prior grantee from the debtor who did not register his deed. The principal objective of the Torrens Act is 'to provide an independent system of registration, whereby an intending purchaser of land can determine from the register the condition of the title.' (People v. Mortenson, 404 Ill. 107, 111, 88 N.E.2d 35, 38; Miller v. Frederick's Brewing Co., 405 Ill. 591, 594, 92 N.E.2d 108; Hacken v. Isenberg, 288 Ill. 589, 599--600, 124 N.E. 306.) While generally it has been held that to achieve this all matters affecting title to registered property should be either registered or memorialized so that the Registrar's duplicate certificate will indicate to all interest parties the status of the title (Miller v. Frederick's Brewing Co., 405 Ill. 591, 594, 92 N.E.2d 108; People v. Mortenson, 404 Ill. 107, 113, 88 N.E.2d 35; Hartsman v. Kaindl, 400 Ill. 243, 79 N.E.2d 472; Evans v. Chicago Title and Trust Co., 317 Ill. 11, 147 N.E. 412), we have held that the provisions of the Act must be construed in light of the established law of property and that the register of title will not always be considered conclusive. Chicago and Riverdale Lumber Co. v. Vellenga, 305 Ill. 415, 417--18, 137 N.E. 212; In re Bickel, 301 Ill. 484, 492, 134 N.E. 76.

The language of the Torrens Act does not provide any direct answer to the Registrar's contention; nor has the contention been considered in any reported decision in Illinois. The Registrar urges that in order to serve the objective of the Act, that is, to enable an intending purchaser to determine the condition of title from the register we should read into the Act a provision similar to section 30 of 'An Act concerning conveyances' (Ill.Rev.Stat.1973, ch. 30, par. 29) (hereafter the Conveyance Act). Section 30 provides that a judgment creditor, as well as a Bona fide purchaser, who records his judgment in accordance with the provisions of the Conveyance Act (Ill.Rev.Stat.1973, ch. 30, pars. 1--37a) acquires rights superior to those of the holder of a prior unrecorded interest. It is only because of this statute that a judgment creditor will prevail over the holder of a prior but unrecorded interest. Hooper v. Haas, 332 Ill. 561, 568, 164 N.E. 23; East St. Louis Lumber Co. v. Schnipper, 310 Ill. 150, 156, 141 N.E. 542; 3 E. Grigsby, Illinois Real Property, secs. 1194, 1208 (1948).

The plea of the Registrar that we read into the Torrens Act what section 30 of the Conveyance Act provides cannot be allowed. To do so would be an egregious intrusion upon the legislative authority. The Torrens Act was designed by the legislature to protect intending purchasers (People v. Mortenson, 404 Ill. 107, 88 N.E.2d 35; Balzer v. Pyles, 350 Ill. 344, 183 N.E. 215; In re Bickel, 301 Ill. 484, 134 N.E. 76; Hacken v. Isenberg, 288 Ill. 589, 124 N.E. 306), and has never been considered to extend the preference to judgment creditors. Judgment creditors under section 30 are preferred to holders of prior but unrecorded interests only because of that statute. Section 30 existed prior to the Torrens Act and it is not unreasonable to say that had the legislature intended that judgment creditors receive under the Torrens Act the priority and preference they are given under section 30 it would have inserted a provision in the Torrens Act similar to section 30.

The Torrens Act provides that in disputes under it, courts should be guided by the provisions of the Act, of course, and by general principles of equity. (Ill.Rev.Stat.1973, ch. 30, pars. 59, 70, 130, 131; Klouda v. Pechousek, 414 Ill. 75, 110 N.E.2d 258; Balzer v. Pyles, 350 Ill. 344, 183 N.E. 215; Amundson v. Glos, 271 Ill. 209, 110 N.E. 914.)...