Lady v. Montgomery Ward & Co., Inc.
| Decision Date | 08 January 1980 |
| Docket Number | No. 15743,15743 |
| Citation | 399 N.E.2d 346,80 Ill.App.3d 69,35 Ill.Dec. 512 |
| Parties | , 35 Ill.Dec. 512 Adeline LADY, Plaintiff-Appellee, v. MONTGOMERY WARD & CO., INCORPORATED, an Illinois Corporation, Defendant- Appellant. |
| Court | United States Appellate Court of Illinois |
Thomas M. Barger, III, Livingston, Barger, Brandt, Slater & Schroeder, Bloomington, for defendant-appellant.
Pratt, Larkin, Sternberg & Finegan, P. C., Bloomington (James T. Finegan, Bloomington, of counsel), for plaintiff-appellee.
The plaintiff, purchaser of property at a foreclosure sale, brought this forcible entry and detainer action against Montgomery Ward, the tenant. The complaint, filed July 10, 1979, asserted that the defendant was wrongfully withholding possession of the property.
The matter proceeded to a bench trial on August 29, 1979. The parties orally stipulated the facts in the dispute. The plaintiff gave the following summary, to which the defendant agreed: The defendant currently possesses the premises; the defendant in this case was named a defendant in Provident Savings and Loan Association's earlier foreclosure action; the plaintiff's claim to the property arises from her purchase of the property at the foreclosure sale; the plaintiff received a deed for the property from the county sheriff, and the deed was recorded on May 3, 1979, with the McLean County recorder; the plaintiff in this action is the same person to whom the sheriff's deed was given; on July 10, 1979, the plaintiff demanded possession of the premises from the defendant's store manager and showed the manager the sheriff's deed; Provident entered into a mortgage agreement on December 3, 1964, with the then owner of the underlying fee; no one but the defendant claimed a leasehold interest in the property before, during, or after the foreclosure proceeding; and all successors to the original owners of the premises after 1936 have properly appeared of record. The plaintiff also offered into evidence several exhibits pertaining to the earlier foreclosure action. The defendant then presented his portion of the stipulation, which consisted of certain exhibits, leases, and extensions of leases, for terms beginning in 1936 and ending in 1982. These were admitted without foundation. The plaintiff stipulated to the foundation for and accuracy of the documents, but not to their relevancy the plaintiff preserved an objection to the relevancy of these documents. The defendant's five exhibits are the original lease executed in 1936, and various agreements made since that time extending the term of the lease. By supplemental agreement signed May 27, 1976, the lease was extended from February 15, 1977, through February 14, 1982. The extension previous to this was made in 1966.
By docket entry dated September 13, 1979, the trial court found in favor of the plaintiff. The court's judgment order, entered September 17, 1979, granted the plaintiff the right to immediate possession of the property. Unfortunately, nothing in the judgment order reveals the rationale for the court's decision.
On September 19, 1979, the defendant filed a motion for stay of enforcement and a notice of appeal. Meanwhile, the trial court had issued a writ of restitution, directing the sheriff to put the plaintiff in possession of the property.
On September 25, 1979, the trial court heard and granted the defendant's motion for a stay, but required the defendant to post a $200,000 bond. The writ of restitution was recalled.
The exhibits the plaintiff introduced at trial show the earlier actions and proceedings concerning this property. On October 26, 1978, Provident Federal Savings and Loan Association filed a statutory short-form complaint (see Ill.Rev.Stat.1977, ch 95, par. 23.6) to foreclose a mortgage on the property at issue. The complaint named six parties as defendants, including Montgomery Ward, the tenant. According to the complaint, the mortgage was executed on December 3, 1964; the original mortgagor had since assigned its interest, but Provident remained the mortgagee. The complaint listed nonowners with possible interests in the property and whose equitable rights to redeem were being foreclosed. The list included Montgomery Ward, the tenant. The complaint said that Montgomery Ward was in possession of the property on a lease dated October 21, 1936, which had been extended to February 14, 1977, and that Montgomery Ward still possessed the premises, even after February 14, 1977. The prayer for relief in the complaint sought foreclosure, sale, and an accounting by the defendant in possession, i. e., Montgomery Ward, and "a determination of the leasing arrangement under which (Montgomery Ward) presently leases said premises." This complaint was properly served on Montgomery Ward.
An order of default in the foreclosure action was entered against several defendants, including Montgomery Ward, on January 18, 1979. A decree of foreclosure was also entered that day. Paragraph 10 of the decree found that Provident's mortgage lien was "prior and superior to all rights and interests" of the original mortgagor and all other parties, which would include Montgomery Ward, and "to any and all other claims, rights, interests or liens upon the real estate." The decree also provided:
"(U)pon the issuance of said Sheriff's Deed, the Grantee or Grantees in such deed, or his or their legal representatives or assigns, shall be let into possession of said premises, and that any of the parties to this cause who shall be in possession of said premises, or any portion thereof, or any persons who may have come into said possession under them, or any of them since the commencement of this suit, shall upon the production of said Sheriff's Deed of conveyance surrender possession of said premises to said Grantee or Grantees, his or their representatives or assigns, and, in default of so doing, that a Writ of Assistance shall issue."
The plaintiff in the instant case purchased the property at the foreclosure sale for $228,778.14. A decree confirming the sale was filed March 9, 1979. The court entered an order extinguishing all rights of redemption on June 12, 1979.
The defendant argues first that the default judgment in the foreclosure proceeding did not terminate its rights under the...
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...Savings & Loan Association (1978), 65 Ill.App.3d 272, 22 Ill.Dec. 13, 382 N.E.2d 333.)Lady v. Montgomery Ward & Co., Inc., 80 Ill.App.3d 69, 72–73, 35 Ill.Dec. 512, 399 N.E.2d 346 (4th Dist.1980).11 While Wolf does not appear to contest that W.W. Funding is Wolf's privy for the purposes of ......
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