Holt v. Duncan

• Court: Appellate Court of Illinois
• Writing for the Court: HOFFMAN
• Citation: Holt v. Duncan, 180 N.E.2d 36, 33 Ill.App.2d 477 (Ill. App. 1962)
• Decision Date: 26 January 1962
• Docket Number: Gen. No. 61-0-2
• Parties: Norris B. HOLT and Juanita B. Holt, Plaintiffs-Appellants, v. Harley R. DUNCAN et al., Defendants-Appellees.

Page 36

180 N.E.2d 36

33 Ill.App.2d 477

Norris B. HOLT and Juanita B. Holt, Plaintiffs-Appellants, v. Harley R. DUNCAN et al., Defendants-Appellees.

Gen. No. 61-0-2.

Appellate Court of Illinois, Fourth District.

Jan. 26, 1962.

Rehearing Denied Feb. 27, 1962.

Craig & Craig, Mt. Vernon, Ronald W. Polston, Mt. Vernon, of counsel, for plaintiffs-appellants.

Frank H. Walker, Howard & Howard, Mt. Vernon, for defendants-appellees.

HOFFMAN, Presiding Justice.

This action was brought to redeem 90 acres of land from a purported mortgage. On defendant's motion, the trial court dismissed plaintiffs' suit, on the grounds that plaintiffs' complaint did not state a cause of action, and this appeal is taken from that order.

The complaint, filed September 6, 1960, alleged in substance that on March 16, 1940 the plaintiffs were the owners in fee simple of 90 acres of land located in Jefferson County, Illinois; that at that time, they were indebted to one A. W. Leuty in the sum of $1,012.94, and that on said date of March 16, 1940 the said Leuty loaned plaintiffs a further sum of $87.06; that on that date, plaintiffs executed a deed of the property, which deed was dated February 19, 1940, delivered the same to A. W. Leuty and that the same was recorded; that on said date of March 16, 1940 the said A. W. Leuty executed an instrument purporting to be a contract of sale under which he agreed to sell the premises back to the plaintiffs for $1,500.00 if paid on or before September 7, 1940, and that this instrument was likewise filed in the Recorder's office of Jefferson County; that these instruments constituted a mortgage; that prior to September 7, 1940, A. W. Leuty extended the time for payment to November 7, 1940, and on September 12, 1940, plaintiffs paid $100.00 on the mortgage indebtedness which was accepted by A. W. Leuty; that on March 16, 1940, and ever since, the plaintiffs have resided in California; that on December 19, 1940, plaintiff Norris B. Holt filed an affidavit in the Recorder's office whereby he informed the world of the 'true nature of the instruments' and gave notice of plaintiffs' interests in the land.

The complaint further alleges that on October 15, 1943, A. W. Leuty repudiated the contract and conveyed a portion of the premises to one J. O. Purcell and that the said Purcell knew of the plaintiffs' rights and interests in the land; that on April 27, 1950, the said J. O. Purcell died, leaving his widow and 8 children as his heirs; that on July 19, 1950, all the children of J. O. Purcell conveyed their interests to the mother and the deed was recorded; that on October 22, 1952, the mother, Josie Purcell, died, survived by the said children and that on Feburary 19, 1958, the heirs of Josie Purcell conveyed their interests to certain four Osborns and that deed was recorded in Jefferson County; that thereafter, one of the Osborns died devising his interest in the land to another Osborn in trust. The 3 surviving Osborns and the trustee were all defendants herein.

The complaint then alleges that on October 26, 1943, the said A. W. Leuty further repudiated the interests of the plaintiffs by executing a contract of sale conveying a portion of the land to the defendant Russell R. Stroup and that said Stroup knew of plaintiffs interests in the land before he paid any consideration; that A. W. Leuty died November 4, 1943, and on June 19, 1947, his executor commenced an action against the plaintiffs to quiet title to the land in the estate of A. W. Leuty, and that in May of 1951 the suit was dismissed pursuant to stipulation; that on October 11, 1950, the executor of the estate of said Leuty deeded a portion to Russell R. Stroup pursuant to the terms of the contract referred to; that on October 13, 1950, said Stroup conveyed to Harley R. Duncan and Helen A. Duncan and that the said Duncans knew of the plaintiffs' rights; that the said Harley R. Duncan, Helen A. Duncan Russell R. Stroup and Vera A. Stroup had an abstract, showing plaintiffs' interests prior to any conveyances to them. The two Duncans and the two Stroups were likewise made parties defendant.

The only question in this case is whether or not the complaint states a cause of action. One of the reasons set up by defendants for the dismissal of this complaint is that it shows on its face that the plaintiffs are barred by laches. Defendants say that the plaintiffs' failure to take any action to perfect their title for a period of 20 years now bars this action.

When a deed, absolute on its face, is intended by the parties to be a mortgage, the deed becomes an equitable mortgage and the relationship created is that of equitable mortgagor and mortgagee. Guffey v. Washburn, 382 Ill. 376, 46 N.E.2d 971. This relationship continues until the right of redemption is barred in some mode recognized by law. Bearss v. Ford, 108 Ill. 16. One mode, well recognized by Illinois law, is laches. Laches has been defined in Holland v. Richards, 4 Ill.2d 570, 577, 123 N.E.2d 731, 735, to be 'such neglect or omission to assert a right as, taken in conjunction with lapse of time of more or less duration, and other circumstances causing prejudice to the adverse party, will operate as a bar in a court of equity.' And, if laches is present, the right of redemption will be barred without reference to the statute of limitations. Freymark v. Handke, 415 Ill. 360, 114 N.E.2d 349.

But, can relief be denied, because of laches, without a hearing on the merits? Can laches be apparent upon the face of a complaint? These questions were answered in the affirmative by the Supreme Court in Holland v. Richards, supra, wherein the court held that the defense of laches can be raised by a motion to dismiss if: (1) an unreasonable delay appears on the face of the pleading; (2) no sufficient excuse for delay appears or is pleaded; and (3) the motion specifically points out the...