Merchants Nat. Bank of Aurora v. Olson

• Decision Date: 02 April 1975
• Docket Number: No. 73--331,73--331
• Citation: 27 Ill.App.3d 432,325 N.E.2d 633
• Parties: The MERCHANTS NATIONAL BANK OF AURORA, Plaintiff-Appellant, v. Lowell D. OLSON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 633

325 N.E.2d 633

27 Ill.App.3d 432

The MERCHANTS NATIONAL BANK OF AURORA, Plaintiff-Appellant, v.Lowell D. OLSON, Defendant-Appellee.

No. 73--331.

Appellate Court of Illinois, Second District, Second Division.

April 2, 1975.

North, North & Ohlson, Rockford, Goldsmith, Dyer, Thelin, Schiller & Dickson, Martin L. Cassell, Aurora, for plaintiff-appellant.

Reno, Zahm, Folgate, Skolrood, Lindberg & Powell, Rockford, for defendant-appellee.

DIXON, Justice:

This case arose on a Citation by plaintiff, The Merchants National Bank of Aurora to Discover Assets of Marvel Olson Shores.The plaintiff Bank had obtained a judgment in 1962 against Lowell D. Olson only and had filed a Memorandum of Judgment creating a lien against real estate which Olson since 1956 had owned in joint tenancy with his wife Marvel.After Olson died the Bank commenced the instant proceedings.The wife, since remarried, moved to dismiss and the Circuit Court of Winnebago County dismissed the complaint finding (a) that on the death of Olson, Marvel became sole owner, as surviving joint tenant, free and clear of the line of plaintiff Bank on the undivided one-half interest owned by Olson, previous to his death, and (b) that Section 219b of Chapter 3(Ill.Rev.Stat.1971) has no application to the facts of this case.

The Bank has conceded that the rendition of a judgment against one joint tenant of real estate does not constitute a severance of the joint tenancy and has agreed that the law prior to the enactment of Sec. 219b of ch. 3 was, that if the debtor dies before a sale is had the debtor's share vests in the surviving joint tenant free of the judgment lien.See: Jackson v. Lacey, 408 Ill. 530, 97 N.E.2d 839;Van Antwerp v. Horan, 390 Ill. 449, 61 N.E.2d 358, 161 A.L.R. 1133;Peoples Trust and Savings Bank v. Haas, 328 Ill. 468, 160 N.E. 85;Spikings v. Ellis, 290 Ill.App. 585, 593, 8 N.E.2d 962.

The Bank does contend that Section 219b of the Probate Act, has changed the law concerning survival of liens on real estate held in joint tenancy when the lien was only against the interest of the deceased.

We do not agree with the Bank and we affirm the judgment of the trial court.

Section 219b is titled, 'No Exoneration of Encumbered Interests in Real Estate.'The title of an act is to be considered in construing it.People ex rel Toman v. Illinois Central Hotel Co., 380 Ill. 203, 205, 43 N.E.2d 969;Morck v. Nicosia, 91 Ill.App.2d 327, 332, 235 N.E.2d 287.

The applicable paragraph which the Bank tenders would read:

'Except as otherwise expressly provided by the decedent's will:

(a) When any real estate * * * subject to an encumbrance, * * * passes by joint tenancy * * * (the) surviving tenant * * *, takes it subject to the encumbrance and is not entitled to have the indebtedness paid from other real or personal estate of the decedent.'

A thorough discussion of the Doctrine of Exoneration as applicable, and comment to this Section may be found in 4 James Illinois Probate Law and Practice, 1972 pocket parts by Austin Fleming, pages 222--227.

Section 219b abrogates the doctrine of exoneration in respect to the right of a surviving joint tenant to have liens on the real estate paid in whole or in part out of the decedent's...