                                            SIXTH DIVISION
                                            March 14, 2008



No. 1-05-3134

M. L. LAH, as Trustee u/t/a             )   Appeal from the
dated February 13, 2001, a/k/a          )   Circuit Court of
Trust No. 5226,                         )   Cook County
                                        )
          Plaintiff and                 )
          Counterdefendant-Appellee,    )
                                        )
                                        )
     v.                                 )
                                        )
                                        )
CHICAGO TITLE LAND TRUST COMPANY, as    )
Trustee u/t/a dated June 26, 2002,      )
a/k/a Trust No. 1111039; CHICAGO TITLE )
LAND TRUST COMPANY, as Trustee u/t/a    )
dated November 14, 2001, a/k/a Trust No.)
1110352; CHICAGO TITLE LAND TRUST       )
COMPANY, as Trustee u/t/a dated         )
November 5, 2001, a/k/a Trust No.       )
1110090                                 )
                                        )
          Defendants and                )   No. 02 CH 21631
          Cross-defendants-Appellees,   )
                                        )
                                        )
                                        )
LaSalle Bank, NA, as Trustee u/t/a      )
dated March 19, 2001, a/k/a Trust No.   )
127392,                                 )
                                        )
          Defendant and                 )
          Counterplaintiff-Appellant;   )
                                        )
                                        )
Valerian Simirica,                      )
                                        )
          Defendant and                 )
          Counterplaintiff and          )
          Cross-plaintiff-Appellant;    )
No. 1-05-3134


                                         )
                                         )
Robert Ambriz,                           )
                                         )
          Defendant and                  )    Honorable
          Cross-defendant-Appellee.      )    Mary Anne Mason
          Appellee.                      )    Judge Presiding


     JUSTICE McNULTY delivered the opinion of the court:

     In a dispute over title to a parcel of Chicago real

property, the circuit court denied the claims of Valerian

Simirica because his title was fraudulent and because he was not

a good-faith purchaser who lacked notice of the fraud.     The court

further held that the competing claimant, John Waters, should be

granted title to the property despite securing it through actions

that were "inequitable (at best) and more likely, unlawful,"

because those actions, in a prior proceeding, harmed a third

party, not Simirica, and could not be raised by Simirica as

support for his claims.   While we agree with the circuit court's

assessment of the merits of Simirica's claims, we do not agree

that it lacked authority to address Waters' improprieties or that

it was obliged to award him title to the property.   Accordingly,

we affirm the court's disposition of Simirica's claims, vacate

its award of title in fee simple to Waters, and remand for

further proceedings.

                            BACKGROUND



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No. 1-05-3134


     The instant appeal comes to this court without the filing of

an appearance or brief by any party other than appellant Valerian

Simirica.   Under such circumstances, a reviewing court is not

required to search the record for the purpose of sustaining the

trial court's judgment, but if the claimed errors are such that a

court can decide them without the aid of an appellee's brief, the

reviewing court "should decide the merits of the appeal."     First

Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d

128, 133 (1976).   We find the issues and record before us in the

instant case to be sufficiently straightforward that the matter

may fairly resolved despite the absence of an appellee's brief,

and so proceed to the merits.

     Plaintiff M. L. Lah, trustee for a land trust whose

beneficiary was John Waters, commenced an action to quiet title

to a parcel of residential property in Chicago.   Defendant

Valerian Simirica, beneficiary of a land trust administered by

defendant LaSalle Bank, also claims title to the property on

behalf of his trustee.

     At trial, Waters testified that he bought and rehabbed

distressed properties in the Chicago area; that an acquaintance,

Nathan Edmond, sometimes advised him of properties that were

about to be sold for delinquent taxes; and that on February 12,




                                 3
No. 1-05-3134


2001, Edmond informed him that the owner's period for redemption

of the subject property was to expire the next day.

     Waters testified that he visited the property, saw a single-

family home on a residential lot, and learned from a neighbor the

name and telephone number of the property's owner, Nancy

Kwiatkowski.    Waters called Kwiatkowski, and when she told him

that she did not intend to redeem the property, he offered to

purchase it for $10,000.    Waters testified that he and

Kwiatkowski reached an oral agreement for purchase of the

property over the telephone, but he did not recall giving her any

information about the redemption process.    Waters conceded that

when he went to Kwiatkowski's workplace to attempt to finalize

the purchase, she told him that she was not ready to proceed.

     Despite his failure to reach agreement with Kwiatkowski,

Waters redeemed the unpaid taxes on the last day of the

redemption period, February 13, 2001.    Waters and Kwiatkowski

reached agreement for the sale of the property for $25,000 on

March 16, 2001.    Both the deed from Kwiatkowski to Waters'

trustee and the purchase contract executed on March 16 were back-

dated to February 13, 2001, and Waters testified that he put the

earlier date on the deed because he "wanted to be sure that I had

an interest in the property at the time I made the redemption so

that the redemption could not be set aside."    When a tax

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No. 1-05-3134


purchaser, Mooring Tax, did attempt to expunge Waters'

redemption, he produced the deed, his redemption was apparently

held to be proper, and the Mooring Tax expungement petition was

denied. Waters did not record the deed from Kwiatkowski until

September 2002.

     Valerian Simirica's claim of title descends from a second

deed from Kwiatkowski.    Waters' acquaintance, Nathan Edmond,

testified at trial that after informing Waters about the pending

tax sale, he also gave Waters half of the approximately $4000

needed to cure the property's tax delinquency.    According to

Edmond, Waters represented that he would handle the details of

the purchase from Kwiatkowski; Edmond said that he expected to be

identified as a co-owner of the property on the deed that

Kwiatkowski executed.    Edmond attended a court hearing on the

Mooring Tax expungement petition and saw a deed from Kwiatkowski

that did not identify him as a purchaser.

     Edmond testified that he did not find any deed from

Kwiatkowski recorded, that he was still interested in acquiring

the property, and that after approaching Kwiatkowski and her

attorney, he got a deed to the property.    The record presented to

this court includes a quitclaim deed from Kwiatkowski to a trust

administered by Chicago Title Land Trust Company; the deed was

prepared by Edmond and indicates that the consideration for the

                                  5
No. 1-05-3134


transfer of interest was $10.   Edmond testified that he was not

the beneficiary of the grantee land trust, and that he was not

sure whether the beneficiary was a corporation or an individual

named Andy Roman.   Although the deed from Kwiatkowski to the

trust was dated March 16, 2001, the land trust which received the

deed was not created until June 26, 2002, which was also the date

on which the deed was recorded.   Simirica claims title to the

property through a chain of land trust transactions stemming from

this deed.

     Lah, Waters' trustee, filed an action to quiet title which

alleged that the deed prepared by Edmond to convey the property

from Kwiatkowski to a land trust was a forgery; that the deed

failed because it conveyed to a nonexistent grantee: a land trust

that had not yet been created; and that purchasers whose claims

came from the Edmond deed could not defeat Waters' claim of title

because they were aware that Waters was in possession of the

property.

     Simirica counterclaimed through his land trust, alleging

that he had purchased the property on August 23, 2002 without

notice of any competing ownership claims and that his trust had

superior claim to the property.   Simirica also filed a cross-

claim against Robert Ambriz, alleging that he had purchased the

property from Ambriz through multiple land trust transactions and

                                  6
No. 1-05-3134


that Ambriz's failure to convey good title was damaging him to

the extent of the losses he suffered in the Waters-Lah action.

In addition, Simirica filed an action to eject a tenant who

apparently leased the property from Waters.

     At trial, Waters testified that he had begun rehab work on

the property to prepare it for resale, and that in the course of

that work, he saw evidence that the home on the property had been

broken into.    A neighbor to the property told Waters that he had

seen Simirica's brother entering the house, and that the brother

had given him a business card from Simirica's real estate

company.   Waters also testified that he went to Simirica's

office, that Simirica reported that he had purchased the property

from an individual named Andy Roman, and that when Waters told

Simirica that he owned the property, Simirica answered that he

"should settle up with Nate Edmond."

     Simirica testified that Andy Roman was a real estate agent

he had known for many years, and that Robert Ambriz, a realtor

who worked for Roman's agency, had told him about the property.

Simirica stated that he had visited the property with Ambriz just

before submitting a purchase contract, but that he did not ask if

Ambriz had a key to the house and did not ask to see the interior

of the house.   Simirica visited the property once again before

closing, but again did not seek entry into the house, and did not

                                  7
No. 1-05-3134


receive keys to the house at closing.      Simirica testified that he

took possession of the house by removing plywood boarding from

the back door.

     The trial court noted that much seemingly relevant evidence

had not been presented at trial:       Kwiatkowski was not called as a

witness by either Waters or Simirica, neither Ambriz nor Roman

testified, and Edmond was not asked to explain the conveyance to

Roman.

     The court found that Simirica's claim to the property

stemmed from a fraudulent deed: though the Edmond deed was dated

March 16, 2001, the same date the Kwiatkowski-Waters deed was

actually executed, the court found that Edmond's testimony

established that his dealings with Kwiatkowski and her attorney

occurred some time in 2002, after she had conveyed her interest

in the property to the Waters-Lah trust.

     Having found Simirica to be a purchaser from a fraudulent

title claimant, the court held that his claim on the property

could prevail only if he demonstrated that he had given actual

value for the property in good faith, without notice of the cloud

on its title.    The court determined that Simirica failed to

sustain this burden.    "Simirica's testimony that he contracted to

pay $100,000 cash for the property without ever seeing the inside

or so much as looking through the window strains credulity.

                                   8
No. 1-05-3134


While dealers in distressed realty often purchase property 'as

is,' anyone motivated to make a profit would want to know in

advance how much of an investment would be required to render the

property habitable.   Moreover, Simirica never asked Ambriz, a

realtor who purported to own the property, for a key and was

content to have to break into the property after the close.

Indeed, it is apparent to the Court that Simirica's testimony was

designed to convey complete ignorance about the condition of the

property so as to reinforce his claim that he knew nothing that

would have put him on notice that someone else owned the

property."   The court also remarked that Simirica's reported

statement to Waters that he should "settle up" with Edmond cast

doubt upon his claims of lack of notice.   Finally, the court held

that despite producing a contract that reflected his agreement to

pay $100,000 for the property, Simirica did not provide any proof

of an actual payment for the property.

     The court concluded that Simirica, having taken title to the

property with notice of an adverse claim, acted at his own risk,

and held that he could not prevail in his couterclaim for title,

his action for ejectment of Waters' tenant, or his third-party

claims against Ambriz.

     The court then addressed Waters' claim to the property.     It

determined that he did not have an interest in the property until

                                 9
No. 1-05-3134


March 16, 2001, when he executed an agreement to purchase the

property and obtained a deed from Kwiatkowski, and that on

February 13, 2001, when he redeemed the property's delinquent

taxes, he did not have the interest required by Illinois law for

redemption.   "Under these circumstances it appears that Waters

was a stranger to the title when he redeemed on February 13,

2001."

     The trial court, clearly troubled by Waters' back-dating of

his deed from Kwiatkowski, commented, "On a very fundamental

level, the Court is reluctant to award equitable relief to a

party who has engaged in inequitable (at best) and more likely,

unlawful conduct.   Waters mislead [sic] the Clerk's Office when

he sought to redeem the property, he mislead [sic] Edmond

regarding his intention to include him in the purchase and, most

disturbingly, he mislead [sic] a judge of the Circuit Court of

Cook County when he produced a deed that purported to convey an

interest to him as of a date when he had no colorable claim to

the property."

     But the court concluded that the expungement proceeding was

"a fait accompli" with respect to the case before it.   The court

determined that Simirica could not benefit from Waters' unclean

hands because none of Waters' improper conduct had been directed

at him.   The court held that because Waters' trustee was the

                                10
No. 1-05-3134


grantee under the only valid deed to the property, it was the

proper titleholder.

     Simirica appeals.   No other party has appeared in this

court.   As noted previously, we find the instant appeal to

present issues that are sufficiently straightforward to allow our

resolution without the assistance of an appellee's brief, and

therefore address the merits.

                             ANALYSIS

     Simirica contends that the trial court erred in finding that

he was not a bona fide purchaser without notice of Waters' claim

to the property.   That finding may be disturbed in this court

only upon a showing that it is against the manifest weight of the

evidence.   Guzik v. Wujek, 132 Ill. App. 2d 336, 339-40 (1971).

A finding is against the manifest weight of the evidence only

when the opposite conclusion is clearly evident.   BCGS, L.L.C. v.

Jaster, 299 Ill. App. 3d 208, 216 (1998).

     Trial court error has not been demonstrated here.   In our

view, Simirica's willingness to purchase the property without

inspection of its interior and his closing of the purchase

without receiving keys strongly support the trial court's

conclusion that he had actual notice of a competing claim to the

property.   This conclusion is further supported by Waters'

testimony that Simirica told him to settle his claim with Edmond.

                                11
No. 1-05-3134


Simirica argues that he appropriately relied on the results of a

title search which revealed no competing claims, but this fact

could reasonably be determined by the trial court to be

outweighed by the evidence supporting the conclusion that

Simirica was aware of the Waters claim.

     Simirica's contention that he did pay actual value for the

property is similarly insufficient to require reversal of the

trial court's contrary finding.    He argues that his deed

demonstrates that he gave consideration for the property and that

various trial exhibits served as evidence of his actual payment

for the property, but neither the deed nor the exhibits cited in

his brief in this court have been made a part of the appellate

record.   In the absence of an appellate record sufficient to

demonstrate that the trial court's finding was contrary to the

manifest weight of the evidence, we must presume that finding to

be correct.   Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).

     We accordingly reject Simirica's argument for reversal of

the trial court's finding that he was not a bona fide purchaser

without notice.   The rejection of that argument dictates a

similar rejection of Simirica's argument that the trial court

erred in denying relief on his cross-claims against the parties

who conveyed the property to him.      A party who receives property

with notice of other claims takes title subject to those known

                                  12
No. 1-05-3134


claims.   American National Bank & Trust Co. v. Vinson, 273 Ill.

App. 3d 541, 544 (1995).   The clear import of Simirica's notice

of Waters' claims on the property is that he cannot assert that

he has been injured by those claims.   Simirica's cross-claim

against Ambriz did not allege that Ambriz warranted clear title,

and Simirica makes no such claim of breach of warranty in this

court; we therefore conclude that the trial court properly

dismissed his claims against Ambriz and his other land trust

grantors as a result of its finding that he had notice of the

Waters claim.

     Simirica next contends that Waters could not be granted

title to the property because of the trial court's finding that

Waters had redeemed the property's delinquent taxes before

acquiring any interest and then defeated the tax purchaser's

acquisition by producing a deed which falsely indicated that he

had purchased the property from Kwiatkowski before the lapse of

the redemption period.

     The trial court correctly observed that a party attempting

to redeem a property tax delinquency must have at least some

interest in the property, however incomplete or undefined.      In re

Application of the Cook County Treasurer, 185 Ill. 2d 428, 433

(1998).   The court observed that Waters, at the time he redeemed,

had not reached agreement with Kwiatkowski for purchase of the

                                13
No. 1-05-3134


property and had no legal or equitable title claim.      The court

further noted that there was no evidence that Kwiatkowski

directed Waters to redeem.

     Emphasizing these facts, Simirica argues, as he did in the

trial court, that Waters' actions gave him unclean hands and

should bar him from an award of title to the property.      The trial

court ruled that since the Waters conduct at issue was not

directed at Simirica and did directly involve the title dispute

between the two parties, Simirica could not invoke the unclean

hands doctrine to prevail against Waters.    We agree.    Cole v.

Guy, 183 Ill. App. 3d 768, 776-77 (1989).   The court then

concluded that it was without jurisdiction to address its

concerns about Waters' conduct, and that since his claim of title

was superior to that of Simirica, its only choice was to award

him the property in fee simple.    We do not believe that the

court's options were so foreclosed.

     Waters' admission that he had backdated his deed from

Kwiatkowski established the possibility that the tax sale

purchaser, Mooring Tax, had an interest in the property that had

been improperly defeated.    The trial court was empowered to

address this occurrence by allowing Mooring Tax to be joined as a

party to the quiet title proceeding to permit it to address the

defeat of its purchase.

                                  14
No. 1-05-3134


     The failure to join a necessary party may be raised at any

time: by the parties or by the trial court or appellate court sua

sponte.   Lakeview Trust & Savings Bank v. Estrada, 134 Ill. App.

3d 792, 811 (1985).   A necessary party is one whose presence in a

lawsuit is required for any of three reasons: (1) to protect an

interest which the absentee has in the subject matter which would

be materially affected by a judgment entered in his absence; (2)

to reach a decision to protect the interests of those who are

before the court; or (3) to enable the court to make a complete

determination of the controversy.    In re Application of Busse,

145 Ill. App. 3d 530, 535 (1986).    In the instant case, the facts

presented to the trial court revealed that Mooring Tax may have

been prevented from taking title to the property by fraud; we

believe these facts revealed an interest in the title proceedings

sufficient to require the company's inclusion.   The trial court

explicitly expressed dissatisfaction at its apparent inability to

address Waters' conduct; we believe that a complete determination

of the controversy would have enabled an opportunity for Mooring

Tax to assert its claim to the title.

                            CONCLUSION

     For the foregoing reasons, we affirm the portion of the

judgment of the circuit court of Cook County which denies

Simirica relief on his claims for title to the property, his

                                15
No. 1-05-3134


claims for ejectment, and his claims against Ambriz and the land

trusts that conveyed the property to him.   We reverse that

portion of the judgment which grants title in fee simple to

Waters' trustee, Lah, and remand the cause to the circuit court

3for further proceedings allowing the joinder of Mooring Tax and

any other party found by the court to be necessary to a complete

and equitable resolution of the title dispute.

     Affirmed in part and reversed in part; cause remanded.

     McBRIDE, P.J., and O'MALLEY, J., concur.




                               16
             No. 1-05-3134

__________________________________________________________________________________________________________________________
                                 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                                             (Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
form                     M.L. Lah, as Trustee u/t/a dated February 13, 2001, a/k/a Trust No. 5226,

                                                    Plaintiff/Counter-Defendant-Appellee,

                           v.

                           Chicago Tile Land Trust Co., as Trustee u/t/a dated June 26, 2002, a/k/a Trust No. 1111039;
                           Chicago Title Land Trust Co., as Trustee u/t/a dated November 14, 2001, a/k/a Trust No.
                           1110352; Chicago Title Land Trust Company, as Trustee u/t/a dated November 5, 2001,
                            a/k/a Trust No. 1110090,

                                                      Defendants/Cross-defendants-Appellees,

                           LaSalle Bank, NA, as Trustee u/t/a dated March 19, 2001, a/k/a Trust No. 127392,

                                                      Defendant/Counter-plaintiff-Appellant,

                             Valerian Simirica,

                                      Defendant/Counter-plaintiff/Cross-plaintiff-Appellant,

                                Robert Ambriz,

                                    Defendant/Cross-defendant-Appellee.
_____________________________________________________________________________________________
                                                                No.     1-05-3134
 Docket No.
                                                             Appellate Court of Illinois
COURT                                                        First District, SIXTH Division
 Opinion
  Filed                                      March 14, 2008
                                         (Give month, day and year)
 __________________________________________________________________________________________
                      JUSTICE JILL K. McNULTY DELIVERED THE OPINION OF THE COURT:

 JUSTICES                                                  McBRIDE, P.J., and O’MALLEY, J.,                   concur.

                                     Lower Court and Trial Judge(s) in form indicated in margin:
APPEAL from the
Circuit Court of Cook                               Appeal from the Circuit Court of Cook County.
County; the Hon________
Judge Presiding.                                      The Hon. MARY ANNE MASON Judge presiding.
__________________________________________________________________________________________________________________________
                         Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word r
FOR APPELLANTS                                                       NONE if not represented.
John Doe, of Chicago

For APPELLEES, :           APPELLANT: LAW OFFICES OF BURTON BROWN, Chicago, IL, Burton A. Brown and Stephen J. Spiegel.
Smith and Smith of

                                                                  17
           No. 1-05-3134

Chicago,           APPELLEE: NONE




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