Parks v. Parks

2019 IL App (3d) 170845

Opinion filed June 12, 2019
________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2019

RAYMOND PARKS; CHARLES PARKS; )
ARLENE PARKS, as Special Representative )
of the Estate of Robert Parks; GEORGE R. )
MUELLER; KATHLEEN REASON, ) Appeal from the Circuit Court
Personally and as Special Representative of the
) of the 14th Judicial Circuit,
Estate of Anna Mueller; DON P. MUELLER; ) Rock Island County, Illinois.
MICHAEL MUELLER; and JAMES )
MUELLER, )
) Appeal No. 3-17-0845
Plaintiffs-Appellants, ) Circuit No. 12-MR-44
)
v. )
) The Honorable
JAMES D. PARKS, Personally and as the ) Mark A. VandeWiele,
Executor of the James C. Parks Estate and the ) Judge, presiding.
Successor Trustee of the William Parks Jr. )
Revocable Living Trust; and JOHN L. PARKS, )
)
Defendants-Appellees. )
________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court, with opinion.
Presiding Justice Schmidt and Justice O’Brien concurred in the judgment and
opinion.

________________________________________________________________________
 OPINION

¶1 Plaintiffs filed a complaint for the ejectment of defendant James D. Parks (James

D.), arguing that they are entitled to possession of a farm under the will of Laura Parks

(Laura). Both parties filed cross-motions for summary judgment. The trial court denied

plaintiffs’ motion and partially granted defendants’ motion, determining that (1) James D.

had possessory rights to the farm through a contractual agreement between William Parks

Jr. (Will Jr.) and Laura and the subsequent conveyance of Will Jr.’s interest in the farm

and (2) plaintiffs’ claim was barred by laches. Plaintiffs appealed. We affirm.

¶2 I. BACKGROUND

¶3 In a two-step transaction on April 8 and 9, 1943, William Parks Sr. (Will Sr.)

effectively conveyed 332 acres of land in Rock Island, Illinois (Parks Farm), which he

had previously solely owned, to himself and his wife, Laura Parks, in joint tenancy. The

two deeds effecting this conveyance were recorded on April 12, 1943.

¶4 The couple had five 1 children: William (Will Jr.); John D.; Robert; Anna; and

Donald. Will Jr. had one son, James C. John D. predeceased his parents, leaving three

children: John L., Charles, and Raymond. John L. had one son, James D. Donald, who

died without children, predeceased Laura.

¶5 Sometime during 1946-47, Will Sr. and Laura moved from Parks Farm to a house

on another farm. Around the same time, Will Jr. returned from the war, and he and his

wife, Edythe, moved into Parks Farm and farmed the land. In 1960, Will Sr. and Laura

purchased and moved into a home in Aledo, Illinois. Aside from a brief stay in an

1
The trial court’s order states there were four children, but Laura’s handwritten correction
in “SECTION TWO” of her October 23, 1988, will established there was a fifth child who had
also predeceased Laura.
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 assisted living center, Will Jr. lived and worked on Parks Farm from the time he and

Edythe took possession in the mid-1940s until his death in 2002.

¶6 In October 1960, Laura wrote separate letters to her other surviving children,

Robert, John D., and Anna, informing them that she and Will Sr. intended to sell Parks

Farm to Will Jr. Specifically, in her letter to Robert, Laura explained that they were

contracting to sell Parks Farm to Will Jr. for $60,000 ($80,000 minus an advancement of

Will Jr.’s anticipated $20,000 inheritance from their estates) and Will Jr.’s commitment

to co-sign on and to solely pay a mortgage on Parks Farm to help his parents purchase

their house in Aledo.

¶7 In conformity with the letter, in September 1960, Will Sr., Laura, Will Jr., and

Edythe signed a $17,000 mortgage provided by Prudential Insurance Company on Parks

Farm. (Will Jr. paid the mortgage in full in May 1978—29 months early.) Will Sr. and

Laura moved to the house in Aledo. In February 1961, again in conformity with the letter,

Will Jr. entered into an agreement with Will Sr. and Laura to purchase Parks Farm for

$60,000. The agreement states, in relevant part:

“The said Parties of the First Part hereby covenant

and agree to convey the said premises above described, or

cause the same to be conveyed, to the said Party of the

Second Part by a good and sufficient Warranty Deed

executed by the Parties of the First Part in due form of law,

which Deed shall be delivered to the said Party of the

Second Part upon payment being made as hereinafter

provided.

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 ***

It is agreed by and between the parties hereto that

the taxes on said premises for the year 1960 payable in the

year 1961 are to be paid by Parties of the Second Part.

Possession of said premises shall be delivered to the said

Party of the Second Part on or before the 1st day of March

1961.

On his part the said Party of the Second Part agrees

to pay to said Parties of the First Part, or the survivors, the

sum of Sixty Thousand ($60,000.00) Dollars in the manner

following: Assuming by him of real estate mortgage now a

lien upon said premises in favor of The Prudential

Insurance Company of America in the principal sum of

Seventeen Thousand and no/100 ($17,000.00) Dollars, it

being understood that said mortgage lien draws interest at

the rate of six (6) per cent per annum and the Party of the

Second Part is to pay installment of principal and interest

due on said mortgage lien March 1st, 1961; and the

remainder of the purchase price being the sum of Forty-

three Thousand and no/100 ($43,000.00) Dollars, on or

before Ten (10) years from the March 1st following the

date of the death of the survivor of the Parties of the First

Part, together with interest at the rate of four (4) per cent

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 per annum, payable annually, from March 1st, 1961, to the

March 1st following the date of the death of the survivor of

the Parties of the First Part, and with interest at the rate of

four (4) per cent per annum payable annually, from March

1st two (2) years after the March 1st following the date of

the death of the survivor of the Parties of the First Part, it

being the intention of the parties hereto that Party of the

Second Part shall be relieved from paying any interest for

two (2) years immediately following the date of death of

the survivor of the Parties of the First Part.”

¶8 According to the agreement, Will Jr. had an interest payment due annually in the

amount of $1720 ($43,000 x 4%), beginning on March 1, 1961. On the last page of the

agreement, there were handwritten notes apparently showing interest payments made

from 1962 to 1977. There was no notation for the year of 1972 nor for any year after

1977. No deed conveying Parks Farm from Will Sr. and Laura to Will Jr. was ever

recorded. The record contains no document from Laura and/or Will Sr. advising Robert,

Anna, or John D. that Will Jr. had either completed or defaulted on the purchase of which

she had previously advised them. Nor is there any allegation that such information had

ever been conveyed to them.

¶9 Will Sr. died in March 1985. Laura died four years later in October 1989. If the

terms of the purchase agreement had not previously been completed, by its terms, Laura’s

death fixed the final payment date on the farm as March 1, 2000.

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¶ 10 Laura had executed her last will on June 11, 1988—16 months prior to her death.

The will made no mention of Parks Farm as part of her estate, made no provision for the

receipt and crediting of any payments owing from Will Jr. for Parks Farm, and contained

the following residuary clause:

“I give the residue of my estate, excluding any

property over which I have a power of appointment at my

death, to the following described persons or classes in the

following shares:

A. One-third (1/3) thereof to my daughter, ANNA

LAURA PARKS MUELLER, if she survives me, and if

she does not survive me, then I give such share to the

descendants of ANNA LAURA PARKS MUELLER who

survive me, per stirpes, subject to postponement of

possession as provided below.

B. One-third (1/3) thereof to my son, ROBERT D.

PARKS, if he survives me, and if he does not survive me,

then I give such share per stirpes to the lineal descendants

of ROBERT D. PARKS who survive me, subject to

postponement of possession as provided below.

C. The remaining one-third (1/3) share thereof I

give per stirpes to the lineal descendants of my deceased

son, JOHN D. PARKS, who survive me, subject to

postponement of possession as provided below; provided,

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 however, out of this share I give the sum of Five Thousand

and no/100ths ($5,000.00) Dollars to my daughter-in-law,

PAULINE B. PARKS, if she survives me, which sum shall,

to the extent possible, be first paid her before any

distribution to the descendants of JOHN D. PARKS.

D. I am not unmindful of my son, WILL PARKS,

JR., but feeling that I have previously benefited him, I

intentionally make no provisions for him under this will.”

Laura specifically bequeathed the only real property identified in her will—her Aledo

home—to Anna and her husband, Lawrence Mueller. If Anna or Lawrence predeceased

Laura, the Aledo home would become a part of the estate’s residue.

¶ 11 Kathleen Reason, Laura’s granddaughter and the executor of her estate, filed an

inventory listing of Laura’s real property, personal property, and causes of action in July

1990. Six months later, Reason signed a final account and report and plan of distribution.

A notice of hearing of the final account and report was given to Anna, Robert, Will Jr.,

John D.’s widow (Pauline Parks), and John D.’s three children (Charles, Raymond, and

John L.) and, without objection, the court approved the final account and report and

closed Laura’s estate. Anna, Robert, Raymond, John L., Charles, and Pauline signed a

receipt on distribution stating that they had received “100% of the full and final

distributable share” of the estate. Neither Parks Farm nor a still pending purchase

agreement was listed as a part of Laura’s assets either in her will or during the probate

proceedings.

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¶ 12 In February 1993, Will Jr. created a revocable trust identifying himself as grantor

and trustee. The trust agreement states, in relevant part:

“Section 4.03. Gift of Real Estate. If my

grandnephew, James D. Parks, survives me, I give him all

of my farm real estate which I currently own and is

described as Item 1 of Schedule A attached (hereinafter

referred to as ‘Property’) subject to two conditions: (1) that

my son, James C. Parks, if he survives me, shall have the

absolute right to reside and otherwise occupy the farm

residence, for a period not to exceed six months following

my death, without rent or charge, in order to permit him to

remove his personal property or any other personal effects

given to him under this trust; and (2) that he shall pay each

year to my son, James C. Parks, for so long as my son lives,

an amount equal to seventy-five percent (75%) of the

annual fair market value cash rent for comparable property,

as agreed to by my son and James D. Parks (or his

successor in interest).” (Emphasis added.)

¶ 13 Will Jr. conveyed “all right, title, and interest” in Parks Farm to the trust by

quitclaim deed. 2 From 1992 to 2003, annual real estate tax bills had been mailed to Will

Jr. and the Rock Island County Treasurer’s Office records showed that the taxes for those

years had been paid out of Will Jr. and James C.’s joint checking account at Reynolds

2
Plaintiffs suggest that Will Jr.’s use of a quitclaim deed evidences an implicit concession
that he knew he did not actually own Parks Farm.
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 State Bank. During this time, Will Jr. had lived on and cultivated the farm. In 2000, Will

Jr. leased the farm to a tenant farmer but continued to live on the farm with his son James

C. until Will Jr. died in May 2002. In January 2005, the trust, by trustee’s deed, conveyed

Will Jr.’s interest in Parks Farm to James D. and that deed was recorded. James D.

received tax bills beginning in 2004. James C. paid the tax bills on behalf of James D.

from 2003 until 2011 when James C. died. James D. made the final tax payment for the

2010 tax year in November 2011.

¶ 14 In December 2011, Charles, James D.’s uncle, received a letter from his attorneys

that prompted him to inquire about his possible ownership interest in Parks Farm. Charles

believed that Will Jr. had quitclaimed Parks Farm to his revocable trust, but when he and

his daughter, Paula, checked at the Rock Island County Recorder’s Office, they learned

no such deed had been recorded. In January 2012, following Charles’s discovery,

plaintiffs filed a complaint, claiming title to Parks Farm under Laura’s will and seeking

recovery of all sums and benefits accruing to James D. and to Will Jr.’s trust through the

conveyance of Parks Farm. The plaintiffs amended their complaint to add a claim for the

ejectment of James D. from the property. Defendants responded, claiming four

affirmative defenses: (1) 20-year adverse possession, (2) 7-year adverse possession with

payment of taxes, (3) estoppel, and (4) laches. Defendants filed a motion for summary

judgment, which the trial court initially granted. Plaintiffs sought reconsideration and the

trial court granted the motion and reversed its earlier summary judgment ruling.

Defendant James D. filed an amended motion for summary judgment, which the trial

court denied, and the litigation proceeded.

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¶ 15 After discovery was completed, both parties filed cross-motions for summary

judgment. The court 3 denied plaintiffs’ motion and partially granted that of defendants.

Specifically, the trial court determined that defendant James D. had possessory rights to

the land, originating with the contract for Will Jr. to purchase Parks Farm from his

parents and that there was no evidence that plaintiffs (or their parents) had followed

statutory procedure requiring a contract seller to notify a purchaser of any defaults in the

contract and give the purchaser at least 30 days to cure the default. The court also held

that plaintiffs failed to perfect their own title because there was no deed transferring

Laura’s title to plaintiffs and the farm was not included in the inventory of the estate.

¶ 16 The court further found that plaintiffs’ claim was barred by laches because

(1) Robert had knowledge that Laura and Will Sr. were contracting with Will Jr. for the

purchase of the farm and plaintiffs had notice from public record and (2) defendant was

prejudiced because (a) Will Jr. and James C., both now deceased, could have testified to

pertinent information about the contract and farm, (b) after several years, Will Jr.’s

attorney had destroyed his files, (c) James D. would have no reason to save cancelled

checks and receipts as the farm was not listed as part of the inventory in Laura’s probate,

and (d) plaintiffs had waited just under 35 years (15 years after the 20-year limitations

period) to file their claim. The court rejected defendant’s res judicata, adverse

possession, and color of title defenses. Plaintiffs appealed.

3
At this point in the litigation, injuries sustained in an accident precluded the presiding
judge’s timely resolution of the parties’ pending motions, and a new judge was appointed to
decide the summary judgment motions. Both parties indicated their satisfaction with having the
newly assigned judge make the decision.
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¶ 17 II. ANALYSIS

¶ 18 In this appeal, plaintiffs challenge the trial court’s denial of their motion for

summary judgment and the partial grant of defendants’ motion for summary judgment.

They contend that they have the prima facie title to the Parks Farm necessary to bring a

claim for ejectment against defendants under section 6-109 of the Code of Civil

Procedure (735 ILCS 5/6-109 (West 2016)). Plaintiffs also argue that (1) their claim is

not barred by laches, (2) defendants did not acquire title of the farm through 20-year

adverse possession or under color of title, and (3) their claim is not barred by

res judicata.

¶ 19 When parties file cross-motions for summary judgment, they initially agree that

only a question of law is involved and ask the court to decide the legal issues. Pielet v.

Pielet, 2012 IL 112064, ¶ 28. “However, the mere filing of cross-motions for summary

judgment does not establish that there is no issue of material fact, nor does it obligate a

court to render summary judgment.” Id. Summary judgment should be granted by the

circuit court only where the pleadings, depositions, admissions, and affidavits on file,

when viewed in the light most favorable to the nonmoving party, show that there is no

genuine issue as to any material fact and that the moving party is clearly entitled to

judgment as a matter of law. 735 ILCS 5/2-1005 (West 2016). An appellate court is

similarly constrained because our standard of review is de novo. Seymour v. Collins, 2015

IL 118432, ¶ 42. The parties here do not assert, and we do not find, that there is a genuine

issue as to any material fact.

¶ 20 Pending in this appeal is plaintiffs’ challenge to the circuit court’s decision

denying their motion for summary judgment and granting partial summary judgment in

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 favor of defendants. Although some of defendants’ claims in their summary judgment

motion were denied, no cross appeal has been filed. Thus, we review this case to

determine whether the prevailing moving party was clearly entitled to judgment as a

matter of law.

¶ 21 Because defendants argue that plaintiffs are barred from bringing their ejectment

claim, we begin our analysis addressing their defenses. Defendants allege plaintiffs’

ejectment claim is barred by laches. They contend that plaintiffs were not diligent in

discovering their claimed interest in the farm because (1) although plaintiffs received a

letter from Laura that she was selling the farm to Will Jr., they failed to inquire about

whether the contract had been satisfied and (2) Reason failed to investigate whether

Laura had retained ownership in Parks Farm after her death. Defendants also claim that

they were prejudiced by the delay because (1) Will Jr. was not available to testify about

his rights and interest in the farm and (2) James D. incurred risks and obligations by

paying taxes and insurance on the farm.

¶ 22 Citing this court’s opinion in Amgro, Inc. v. Johnson, 71 Ill. App. 3d 485, 489

(1979), plaintiffs argue that facts known to them must have been such to raise suspicion

and cause inquiry. They allege that their knowledge that Will Sr. and Laura entered into a

contract with Will Jr. to purchase the farm and that Will Jr. remained in possession of the

farm did not raise suspicion or cause inquiry to investigate rights to title. Rather, they

claim that they did not discover their claim until they received notice of James C.’s

probate estate in December 2011. Furthermore, plaintiffs contend that defendants were

not prejudiced because (1) although Will Jr. passed away, Will Jr. and James D. had an

opportunity to establish title to the land but never did, and (2) James D. did not incur

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 risks and expenses as James C., not James D., paid the majority of the farm expenses,

possessed the farm, and retained profits from the farm. Lastly, plaintiffs claim that

defendants cannot raise the defense of laches unless their ejectment claim is also barred

by adverse possession.

¶ 23 Laches is an equitable doctrine that precludes the assertion of a claim by a litigant

whose unreasonable delay in raising that claim has prejudiced the opposing party. Tully v.

State, 143 Ill. 2d 425, 432 (1991). “The doctrine is grounded in the equitable notion that

courts are reluctant to come to the aid of a party who has knowingly slept on his rights to

the detriment of the opposing party.” Id. To prove laches, defendants must show (1) lack

of diligence by the party asserting the claim and (2) prejudice to the opposing party

resulting from the delay. Id. “The test is not what the appellant knows, but what he might

have known by the use of the means of information within his reach with the vigilance

the law requires of him.” Pyle v. Ferrell, 12 Ill. 2d 547, 554 (1958).

¶ 24 Defendants cite Pyle to support their argument. In Pyle, the plaintiff acquired title

to a mineral estate through his father’s will. Id. at 549-50. He learned about his

inheritance in 1932 when his mother died. Id. at 550. He had lived in California until

1946 when he moved back to Illinois. Id. Although he moved 35 miles away from the

land, he did not visit or utilize the estate. Id. In 1936, the estate was sold for delinquent

taxes to Haggie and Bessie Ferrell. Id. at 551. Haggie subsequently died. Id. In 1954, the

plaintiff was notified that the estate had been sold and filed a claim to quiet title. Id. at

550.

¶ 25 The supreme court determined that the plaintiff’s claim was barred by laches. Id.

at 555-56. It reasoned that, considering the plaintiff’s close proximity to the land and the

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 public records concerning the land, “ordinary prudence would suggest he make inquiry

into the status of his interest.” Id. at 554. However, he failed to investigate for eight years

after he moved closer to the land. Id. Moreover, the defendant incurred risks and

obligations related to the lease of the land for oil and gas and paid taxes on the land for

20 consecutive years. Id. at 555. The court further explained that the loss of decedent’s

testimony, which would have been important to the issue of possession under the tax

deed, was another factor to consider in granting relief to the defendant. Id.

¶ 26 Here, plaintiffs did not diligently assert their putative claim against defendants.

The evidence shows that plaintiffs knew or should have known about their interest in the

farm decades before this action was filed. In 1960, Robert, John D., and Anna received

letters from Laura informing them that she and Will Sr. intended to sell the farm to Will

Jr. She further told at least Robert how they calculated the purchase price, including the

offset of Will Jr.’s anticipated share of their estate. In 1989, Laura, the last surviving

spouse, died. She did not list the farm or an incompleted purchase agreement as estate

assets; nor did she leave any information about or instructions for completing any still-

pending payments for purchase of the farm. She did, however, include a specific

reference to Will Jr.’s “previous[ ] benefit[ ]” (the offset of his inheritance against the

purchase price for Parks Farm) when explaining why he had no inheritance under the

will. At this point, plaintiffs had a reminder of the purchase and an opportunity to inquire

of Will Jr. or to search the public records for information about the status of their interest,

if any, in the farm. However, Reason, the executor of Laura’s estate, undertook no

inquiry and did not include the farm or anything related to it in either the inventory listing

or the final account and report. After the court’s approval of the final account and report,

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 it closed the estate. There was no discussion about the farm during the probate

proceeding.

¶ 27 Plaintiffs argue that they did not know about their interest in the farm because

they believed Will Jr. owned the farm. However, Laura’s 1960 letters only stated her

intent to sell the farm. There is no evidence that any of Will Jr.’s siblings asked any

questions of him or their mother about the status of the sale before her death or made any

inquiry of him or search of the records after she died. Nor was there any evidence

demonstrating that the contractual agreement had or had not been completed when she

died. Absent such evidence, plaintiffs should have known to inquire during the probate

proceeding about the status of any interest they might still have in the farm. Fifty-two

years without any inquiry or action about the ownership of the farm seems to us to

constitute an unreasonable delay.

¶ 28 Moreover, defendant was demonstrably prejudiced by this delay. Evidence that

was not obtained or retained during the 29 years between the execution of the purchase

agreement and Laura’s death or during the 23 years between Laura’s death and the filing

of this action left many questions that, if timely answered, would have assisted this court

in determining who actually had title to the farm. As circumstances stand, however, there

is no direct evidence about the completion of the contractual agreement. Laura went to

her grave, as did Will Sr., without shedding any light on the progress of Will Jr.’s

purchase. Will Jr., a potential witness in this suit, died in 2002. After several years, his

attorney destroyed his files. James C., another potential witness, died without being

questioned, and the parties have not provided any evidence related to his probate or any

answers to fundamental questions that would assist this court. See id. (“the rule of laches

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 is particularly applicable where the difficulty of doing entire justice arises through the

death of parties to the transaction complained of”).

¶ 29 In addition, plaintiffs have provided no evidence of any involvement with or

interest in the farm. The record shows that Will Jr. cultivated the farm, leased the farm to

a tenant, and paid taxes until his death. Afterward, James C. continued to live on the farm

and pay taxes until his death. See id. (“a party is guilty of laches which ordinarily bars

the enforcement of his right where he remains passive while an adverse claimant incurs

risk, enters into obligations, or makes expenditures for improvements or taxes”). It bears

noting that Will Jr.’s siblings—Robert, John D., and Anna—have also died and are

unavailable to testify about any questions they may have asked or information they may

have learned from their mother or father or from Will Jr. about the progress, or lack

thereof, on the purchase agreement.

¶ 30 Plaintiffs contend that the residual clause in Laura’s will gave them title to the

farm. We disagree. Laura gave her Aledo home to Anna and Lawrence and included it in

the residual of her estate if Anna and Lawrence predeceased her, but there is no mention

of the farm or any other real estate in the will. Furthermore, plaintiffs did not include the

farm in the final accounting or the plan of distribution. In fact, plaintiffs signed receipts

on distribution stating that each had received 100% of his or her share of the estate and

the estate has never been reopened to administer any unsettled assets. See 755 ILCS 5/24-

9 (West 2016).

¶ 31 Relying on Illinois Central R.R. Co. v. Cavins, 238 Ill. 380 (1909), plaintiffs

allege that defendants cannot assert laches unless they establish that plaintiffs’ claim is

barred under adverse possession. Plaintiffs misconstrue the ruling in Cavins, which

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 established that laches cannot bar an ejectment claim unless plaintiff’s delay in bringing

the claim is barred under the statute of limitations. Id. at 385. Our supreme court in

Thomas v. Chapin, 274 Ill. 95, 102 (1916), in which the appellant argued that the appellee

was barred by laches from asserting an interest in land, explained that:

“In fixing the period in which rights and claims will be

barred by laches[,] equity follows the law, and, as a general

rule, where the period of limitation is fixed by statute,

courts of equity will by analogy adopt the same period. If

appellee’s rights are not barred by the Statute of

Limitations, she is not barred by laches, unless, in addition

to mere delay, there would be something in her conduct or

the circumstances that would make it inequitable to permit

her to assert her title.”

In other words, mere delay does not bar a plaintiff from bringing a claim unless the

statutory period has ended. Brunotte v. DeWitt, 360 Ill. 518, 534 (1935). “To avail

themselves of the defense of laches within the statutory limitation period it was

incumbent upon the defendants to show that the complainant’s delay in instituting this

proceeding was accompanied by some other element rendering it inequitable for her to

assert her title.” Id.

¶ 32 Section 13-101 of the Code of Civil Procedure (735 ILCS 5/13-101 (West 2016))

states that a person must commence an action for the recovery of lands within 20 years

after his right to bring an action accrues. This 20-year limitations period applies to

ejectment actions. Rosenthal v. City of Crystal Lake, 171 Ill. App. 3d 428, 440 (1988).

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Plaintiffs initially learned about their interest in the farm when Laura sent the 1960 letter

expressing her intent to sell the farm to Will Jr., thereby tacitly acknowledging their

future interest if she and Will Sr. retained the farm. Plaintiffs had the opportunity to

inquire of Laura or Will Jr. about the status of their interest at any time up to her death or

at any time prior to Will Jr’s. death. It was, however, during probate, after Laura died

without listing the farm in her will and without any evidence that the contract had or had

not been completed, that their duty to inquire about any interest they might have in the

property arose, creating a cause of action.

“Under the discovery rule, the limitations period does not

begin to run until the plaintiff knows or reasonably should

have known of its injury and that it was wrongly caused.

[Citation.] At the point the injured person knows or should

have known that his or her injury was ‘wrongly caused,’

the injured person possesses sufficient information

concerning his injury and the cause of his injury to put a

reasonable person on notice to make additional inquiries.”

See RVP, LLC v. Advantage Insurance Services, Inc., 2017

IL App (3d) 160276, ¶ 30.

Nonetheless, plaintiffs waited 23 years to file this action. As the trial court ruled in this

case, plaintiffs’ claim was filed after the limitations period; thus, the claim may also be

barred by laches. See Miller v. Siwicki, 8 Ill. 2d 362, 367 (1956) (finding that plaintiff’s

ejectment claim was barred by laches because, inter alia, “injustice would result from the

fact that the original judgment has been barred by limitations and can no longer be

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 revived”). Even if plaintiffs’ claim had not been barred by the 20-year limitations period,

we believe the evidence shows that defendant was fatally prejudiced by plaintiffs’ delay.

Therefore, we hold that plaintiffs’ ejectment claim is barred by laches and that the trial

court did not err in so finding. We need not address defendant’s remaining affirmative

defenses (two forms of adverse possession and estoppel) as this issue is dispositive of this

case. Moreover, defendants, not plaintiffs, lost below on the adverse possession issues.

No cross-appeal was filed. See Kubicheck v. Traina, 2013 IL App (3d) 110157, ¶ 42 (an

appellee who has not filed a cross-appeal cannot seek to modify a portion of the trial

court’s order to secure affirmative relief). Nor do those issues appear to be integral to

plaintiffs’ appeal because plaintiffs only challenge the trial court’s finding of laches and

the denial of their ejectment claim. Those affirmative defenses are therefore not before

us.

¶ 33 We also find that plaintiffs’ ejectment argument fails on statutory grounds

because they never had possession of the farm. In an ejectment action, the plaintiff must

show that (1) he had possession of the subject premises after obtaining legal title, (2) the

defendant subsequently took possession of the premises, and (3) the defendant unlawfully

withholds possession from the plaintiff. 735 ILCS 5/6-109 (West 2016). Will Jr. and,

later, James C. lived on, cultivated, and leased the farm from 1946 or 1947, until each

one died. There is no evidence that plaintiffs ever had any involvement with the farm

during these years. Even if plaintiffs claimed they had possession of the property through

Laura as predecessor in title (see Department of Conservation v. Fairless, 273 Ill. App.

3d 705, 712 (1995)), there is no evidence that defendants “unlawfully withheld[ ] the

possession” of the farm from her. Laura and Will Sr. entered into an agreement with Will

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 Jr. in which Will Jr. was given possession and potential for ownership of the land

beginning on March 1, 1961. Although the trial court found that Will Jr. breached the

contract when he did not pay taxes for the year of 1977, there is no evidence that Laura or

Will Sr. aborted the contract or denied Will Jr. continued possession of the farm. See

Mapes v. Vandalia R.R. Co., 238 Ill. 142, 144 (1909) (“Where possession of land has

been acquired by the assent of the owner and has been long continued, the holding of

possession may not be wrongful until demand of possession has been made.”). Therefore,

we find that plaintiffs did not meet the elements necessary to show they have a cause of

action for ejectment under the statute.

¶ 34 III. CONCLUSION

¶ 35 The judgment of the circuit court of Rock Island County is affirmed.

¶ 36 Affirmed.

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