Moore v. Zelic
| Decision Date | 03 April 1930 |
| Docket Number | No. 19874.,19874. |
| Citation | 170 N.E. 664,338 Ill. 583 |
| Parties | MOORE v. ZELIC et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Mary Moore against Fannie Zelic, Nuncio Bonelli, and others. Decree for complainants, and defendant last named and certain others appeal.
Affirmed.Appeal from Circuit Court, Cook County; Hugo M. Friend, judge.
William E. Rodriguez and John E. Molony, both of Chicago (John M. Humphrey, of Chicago, of counsel), for appellants.
Edward G. Berglund, of Chicago, for appellee.
Appellee filed a bill for partition in the circuit court of Cook county, alleging that she is the owner of a one-twentieth part of the property described in the bill, located in the city of Chicago. Fannie Zelic was made party defendantas the owner of the nineteen-twentieths of the property, and appellants were made parties defendant as claiming some interest in the property. Fannie Zelic answered, admitting the allegations of the bill and consenting to a decree. Appellants filed an answer setting up that they were holders of a judgment which constituted a lien against one-half of the entire premises sought to be partitioned. The bill also prayed the removal of the judgment of the appellants as a cloud on her title. The decree was entered in accordance with the prayer of the bill, and appellants bring the cause here, contending that the evidence does not support the decree, and that an act concerning constructive notice of suits in chancery, approved June 11, 1917, is unconstitutional.
It appears from the averments in the bill and the proof offered that the property involved here was in 1916 deeded by Otto and Elizabeth L. Rueter to Louis Scoda and Fannie Zelic Scoda, husband and wife, as joint tenants; that thereafter, on August 15, 1927, Fannie Zelic Scoda filed a bill for divorce in the circuit court of Cook county, in which she alleged that she had furnished the purchase price for this property, and prayed, not only for a divorce from Louis Scoda, but also that Scoda be required to convey to her the said real estate. This bill for divorce also prayed an injunction against Louis Scoda restraining him from in any was incumbering or disposing of the property. The summons and injunction were served on Louis Scoda on August 30, 1927. On August 20, appellants, who were counsel for Scoda in the divorce proceedings, secured a judgment by confession against Scoda in the sum of $1,075, and thereafter sued out an execution. The sheriff levied on all interests of Scoda in the real estate involved here. On May 8, 1928, Scoda's alleged interest in said real estate was sold at sheriff's sale, and appellants purchased the same for the sum of $1,179.83, and received a sheriff's certificate of purchase therefor.
The circuit court entered a decree in the divorce proceedings finding that complainant, Fannie Zelic Scoda, had furnished the purchase price for the property held by herself and her said husband, and, in addition to the decree for divorce, directed Scoda to transfer all right, title, and interest held by him in said property in satisfaction of alimony and dower, and, on failure so to do, that the transfer to her should be made by the master in chancery. Scoda failing to execute the deed, same was executed by the master in chancery, and the entire interest in the property was conveyed to Fannie Zelic. By that decree she was also given the right to use her maiden name, Fannie Zelic. On May 5, 1928, she executed a deed conveying a one-twentieth interest to appellee, and thereafter, on May 31, appellee filed the bill in the instant suit. In this bill she sets out the bill and decree for divorce of Fannie Zelic, and alleges that the judgment secured by appellants was secured lis pendens, and was therefore subject to the rights of Fannie Zelic in the divorce proceeding. Appellants answered the bill for partition, admitting they had notice of the filing of the bill for divorce, and that they were the owners of the sheriff's certificate of purchase covering the interest of Scoda in the premises. It appears that testimony was taken before the chancellor involving the issues raised in the divorce proceeding,-that is, whether Fannie Zelic had furnished the purchase money for the purchase of the property involved here,-and that the chancellor proceeded to the conclusion that by the deed to Louis Scoda a resulting trust arose for the benefit of Fannie Zelic Scoda, and all this notwithstanding the rights and interests of the parties to this property had been disposed of in the divorce decree, which was res judicata as to all questions raised in that proceeding.
The principal question for review here is whether the judgment of appellants secured August 20, 1927, against Louis Scoda, was lispendens the divorce proceeding. If it was, then appellants here are without title or interest in the property, and the circuit court in the partition proceedings was right in so decreeing.
The bill in the divorce proceedings, filed on August 15, prayed that the interest in the real estate standing in the name of Louis Scoda be transferred to Fannie Zelic Scoda, the complainant. Service of summons and injunction on Louis Scoda was not, however, had until after appellants' judgment was secured, and they contend that the filing of the divorce proceeding prior to the date of their judgment does not constitute ground for holding that they secured their judgment lis pendens, for the reason that the summons and injunction had not at that time been served on Louis Scoda, and that the act concerning constructive notice of suits in equity, approved June 11, 1917, providing that constructive notice shall operate from the time of filing the bill, is unconstitutional. Unless this contention can be maintained, the decree in the divorce proceeding giving the entire property to Fannie Zelic gave it to her freed from the lien of appellants' judgment, and the decree in this case for partition and removal of appellants' judgment as a cloud is correct.
Appellants contend that the statute referred to violates section 13, article 4, of the Constitution, in that it contains more than one...
To continue reading
Request your trial
-
Reinbold v. Thorpe (In re Thorpe)
...notice to every person subsequently acquiring an interest in or a lien on the property affected thereby." Moore v. Zelic, 338 Ill. 583, 587–88, 170 N.E. 664 (1930). In 1963, the Illinois legislature amended the 1917 statute to provide that a litigant's recording of a notice of the suit (a l......
-
Wilkin v. Shell Oil Co.
...with approval in Morgan v. City of Ardmore, supra. 7 Intermediary Finance Corp. v. McKay, 93 Fla. 101, 111 So. 531; Moore v. Zelic, 338 Ill. 583, 170 N.E. 664, 666. 8 Commonwealth ex rel. Kelley v. Kelley, 322 Pa. 178, 185 A. 307, 310; Intermediary Finance Corp. v. McKay, 93 Fla. 101, 111 S......
-
Reinbold v. Thorpe (In re Thorpe)
...subsequent purchasers and interested parties on notice that there was a cloud on the property's title. BR Op. 14; see Moore v. Zelic , 338 Ill. 583, 170 N.E. 664 (1930). In 1963, the statute was amended to reflect the increasing complexities of litigation—purchasers were now not automatical......
-
Admiral Builders Corp. v. Robert Hall Village
...was subject to pending litigation. See generally, Davidson v. Dingeldine (1920), 295 Ill. 367, 129 N.E. 79; see also Moore v. Zelic (1930), 338 Ill. 583, 589, 170 N.E. 664; Taylor v. Lanahan (5th Dist. 1979), 73 Ill.App.3d 829, 831, 29 Ill.Dec. 868, 392 N.E.2d Binding a subsequent purchaser......