LEXSEE 131 ILL. APP. 3D 1058,AT 1062

PORTIA SILAS, Plaintiff-Appellant and Cross-Appellee, v. EMMA ROBINSON,Defendant-Appellee and Cross-AppellantNo. 83-3096Appellate Court of Illinois, First District, Fourth Division131 Ill. App. 3d 1058; 477 N.E.2d 4; 1985 Ill. App. LEXIS 1775; 87 Ill. Dec. 403March 7, 1985, Filed

SUBSEQUENT HISTORY: [***1]

Rehearing Denied April 11, 1985.

PRIOR HISTORY:

Appeal from the Circuit Court ofCook County; the Hon. Reginald Holzer,Judge, presiding.

DISPOSITION:

Judgments affirmed.

CASE SUMMARY:PROCEDURAL POSTURE:

Plaintiff cotenantappealed a judgment of the CircuitCourt of Cook County (Illinois), whichdismissed plaintiff's complaintagainst defendant cotenant forpartition and accounting and orderedplaintiff to execute a quitclaim deedto defendant. Defendant cross-appealedthe trial court's denial of her post-trial motion for attorneys' fees.

OVERVIEW:

Plaintiff filed hercomplaint for partition andaccounting, alleging that she anddefendant were joint tenants ofcertain real property. Defendantalleged that when she and plaintiffpurchased the property, each of themprovided half of the total amount.However, defendant further claimedthat she and plaintiff had agreed thatplaintiff's money was a loan todefendant. The trial court deniedplaiting the relief sought, orderingher to quitclaim her interest todefendant. On appeal, the courtaffirmed., holding that the trialcourt's judgment was not against themanifest weight of the evidence. Thefacts amply established that theparties intended that the deed to bothof them in joint tenancy would serveas security for plaintiff's loan todefendant. The evidence presentedclearly established a debtrelationship between the parties,which was sufficient to find thecreation of an equitable mortgage.Finally, the court found thatplaintiff's pleadings were so spuriousin nature so as to justify theimposition of attorney fees againstplaintiff.

OUTCOME:

The court affirmed the trialcourt's judgment.

CORE TERMS:

equitable mortgage,mortgage, sister, quitclaim, repaid,repairs, circumstances surrounding,evidence presented, facts proved,accounting, post-trial, partition,manifest, tenants, deed, parolevidence, deed absolute, real estate,credibility, untrue, reasonableattorney, abuse of discretion, realproperty, joint tenancy, cross-appeal,substituted, ownership, repayment,formerly, borrowed

LexisNexis(R) Headnotes

Civil Procedure > Trials > BenchTrialsCivil Procedure > Appeals > Standards

of Review > General Overview

[HN1] In a bench trial it is withinthe province of the trial court todetermine the credibility and weightof testimony, to resolve theinconsistencies and conflicts, and torender its decision accordingly. Acourt of review cannot substitute itsjudgment for that of the trial courtunless the manifest weight of theevidence fails to support the trialcourt's findings. This is especiallyso where testimony is conflicting andcontradictory.

Contracts Law > Consideration > General Overview Evidence > Documentary Evidence > Parol EvidenceReal Property Law > Financing > Mortgages & Other Security Instruments> Equitable Mortgages

[HN2] Every deed conveying realestate, which shall appear to havebeen intended only as a security inthe nature of a mortgage, though it bean absolute conveyance in terms, shallbe considered as a mortgage. Ill. Rev.Stat. ch. 95, para. 55 (1979). Anyevidence tending to show that thepurpose and intention of the partiesof the transaction was that of a loanand security is admissible. Thus, allof the circumstances surrounding thetransaction are relevant to theparties', including parol evidence.Relevant factors to determine whetherthe deed absolute in form was intendedto be a mortgage include the relationof the parties, the circumstancessurrounding the transaction, theadequacy of consideration, and thesituation of the parties after thetransaction. Although proof of anequitable mortgage must be clear,satisfactory and convincing, it is notnecessary that there be no conflict inthe evidence presented.

Civil Procedure > Remedies > Costs & Attorney Fees > General Overview Criminal Law & Procedure > Trials > Judicial Discretion

[HN3] Ill. Rev. Stat. ch. 110, para. 2-- 611 (1983) provides thatallegations and denials made withoutreasonable cause and found to beuntrue shall subject the partypleading them to the payment ofreasonable attorney fees and courtcosts actually incurred by the otherparty by reason of the untruepleading. The remedy provided is penalin nature, and the trial court isgiven broad discretion as to any awardgranted.

COUNSEL:

Kenneth A. Green, of Chicago, forappellant.Charles Kraut, Ltd., of Chicago,for appellee.

JUDGES:

JUSTICE ROMITI delivered theopinion of the court. JIGANTI, P.J.,and LINN, J., concur.

OPINION BY:

ROMITI

OPINION:[*1059]

[**5]

Portia Silas(Silas) appeals from the judgment ofthe Cook County circuit court whichdismissed her complaint against hersister, Emma Robinson (Robinson), forpartition and accounting and whichordered her to execute a quitclaimdeed to Robinson. Robinson cross-appeals from the trial court's orderwhich denied her post-trial motion forattorneys' fees. The parties raisethe following questions for ourreview:1. Whether the trial court'sfinding that Silas' interestconstituted an equitable mortgage inthe real property at issue waserroneous as against the manifestweight of the evidence;2. Whether the trial court'sconclusion that the facts proved attrial established the existence of anequitable mortgage was legallyerroneous;

[**6]

3. Whether the trialcourt's

[***2]

denial of Robinson's

post-trial motion for attorney feespursuant to section 2 -- 611 of theIllinois Code of Civil Procedure (Ill.Rev. Stat. 1983, ch. 110, par. 2 --611, formerly Ill. Rev. Stat. 1979,ch. 110, par. 41) was erroneous as anabuse of discretion.We affirm.Silas filed her complaint forpartition and accounting on August 19,1980. She alleged that she andRobinson were joint tenants of certainreal property on the south side ofChicago, and that they had becomeowners of the property by purchasedated May 30, 1975. She furtheralleged that Robinson resided on thefirst floor of the premises and hadcontrol over the second floor, whichRobinson rented to others. Silasclaimed that Robinson had notadequately compensated her forRobinson's occupancy or for the rentscollected. Based upon these factualallegations, she requested partitionof the real property and an accountingfrom Robinson.Robinson filed her answer,affirmative defense, and counterclaimon October 30, 1980. She alleged inpertinent part that when she and Silaspurchased the property at a totalprice of $ 5,600, each of