specially concurring:
Aside from the procedural aspects of this case discussed by the majority, there is another, and I believe more substantive, basis for the result reached. That other basis is the fact that the Conlins were alleged by the Gills to have had actual notice of the claim of the Gills to the 50 acres of real estate involved by virtue of their contract for deed. If the Conlins did have actual, or even constructive, notice of the claim of the Gills at the time they registered their Indiana judgment against Utley and obtained an execution sale, the claim of the Gills to the 50 acres must be deemed to be superior to that of the Conlins.
The record of circuit court case No. 81 — LM—11, the proceeding to register the Indiana judgment against Utley, is not before us. The case we review is No. 81 — CH—5, which was begun on May 15, 1981, by the Gills with a complaint for specific performance of their contract for deed with Utley and for a temporary restraining order and preliminary injunction. The Gills had never been made parties to the proceeding to register the Indiana judgment. The Conlins were, of course, made parties-defendant to the suit for specific performance and injunction. The Conlins’ motion for summary judgment, directed against the Gills’ amended complaint for specific performance, produced the judgment that is the subject of the instant appeal. The proceedings in case No. 81 — LM—11 are known to us from the pleadings, affidavits and exhibits filed by the parties in No. 81 — CH—5.
In their amended complaint for specific performance, the Gills alleged that at the time the Conlins purchased the real estate, apparently at the execution sale, they had notice of the rights of the Gills and, accordingly, took the property subject to a lien in favor of the Gills. Both the complaint and the amended complaint alleged that the Gills had paid the obligation of the contract for deed in full and were entitled to a deed. The amended complaint contained a prayer that the court determine that the interest of the Conlins is inferior and subject to the rights of the Gills or, in the alternative, that the court declare that the Conlins have no interest in the real estate concerned.
The Conlins filed an answer to the amended complaint and a motion for summary judgment. Appended to the motion for summary judgment were copies of various documents that had been filed in case No. 81 — LM—11. Included was a copy of the authenticated copy of the Indiana judgment as it had been filed in 81 — LM—11. The Indiana judgment is in two parts. The first, filed in the Indiana court on April 22, 1980, is a money judgment in ordinary form in favor of the Conlins and against Utley in the amount of $5,557.13. The second, filed in the Indiana court on February 23, 1981, is styled “Entry.” This latter was obviously made as the culmination of supplemental proceedings in the Indiana court for the discovery of assets of Utley, for it recites that Utley appeared in person and testified. Paragraph 3 of the “Entry” recites:
“The Court finds further that defendant represents to the Court that he is presently the owner of approximately fifty (50) acres of real estate located in Harolds Prairie Township, White County, Illinois, which real estate he is selling on contract to Gail [sic] Gill. The defendant represents to the Court that the parties agreed purchase price was $11,000.00, that said real estate is mortgaged to People’s Bank & Trust Co., Mt. Vernon, Indiana in the approximate amount of $7,500.00, and that the fair market value of said property is approximately $20,000.00.”
The Gills filed a response to the Conlins’ motion for summary judgment. Paragraphs 6 and 7 of that response allege that the Indiana judgment shows on its face that the real estate in question was subject to a contract for sale to the Gills and serves as constructive notice of the Gills’ rights in that real estate.
Despite the several foregoing allegations regarding the notice the Conlins had of the Gills’ interest in the real estate involved, summary judgment was granted to the Conlins.
There are a sizeable number of cases that deal with the proposition that persons who acquire an interest in real estate, either as a grantee or as a lien claimant, with notice of an outstanding lien take their interest subject to the outstanding lien. The following proposition is a common thread in these cases:
“It is also the law that a judgment becomes a lien on all real estate of the judgment debtor appearing of record free from the claims of all other persons of which the judgment creditor had no notice, either actual or constructive, and when there is no such notice of an unrecorded deed, the lien will not be affected by the subsequent recording thereof.” (Bauman v. Schoaff(1947), 331 Ill. App. 38, 43-44, 72 N.E.2d 571, 573.)
Some other cases that stand for the same proposition are: Thorpe v. Helmer (1916), 275 Ill. 86, 113 N.E. 954; Carnes v. Whitfield (1933), 352 Ill. 384, 185 N.E. 819; Hayes v. Carey (1919), 287 Ill. 274, 122 N.E. 524; Commercial Trust & Savings Bank v. Murray (1927), 246 Ill. App. 355; and Burnex Oil Co. v. Floyd (1969), 106 Ill. App. 2d 16, 245 N.E.2d 539. This latter case states:
“Where a prospective purchaser has actual knowledge of facts which are inconsistent with the claims of the record owner, the prospective purchaser is not at liberty to ignore such facts. Whatever is sufficient to put a party upon inquiry is notice of all facts which pursuance of such inquiry would have revealed and without such inquiry no one can claim to be an innocent purchaser as against the party claiming an interest in the property supported by such notice.” 106 Ill. App. 2d 16, 23-24, 245 N.E .2d 539, 544.
The foregoing cases and authorities, when applied to the alleged fact that the Conlins acquired the real estate with notice of the interest of the Gills, would subject the interest of the Conlins to that of the Gills.
There are, however, factual matters to be resolved. For instance, the “Entry” portion of the Indiana judgment does not give a legal description of the 50 acres to which it refers, and it must be determined whether this 50 acres is that purchased by the Gills.
For the foregoing reasons, I join with the majority in reversing the summary judgment and remanding the case for further proceedings upon the Gills’ amended complaint for specific performance of the real estate contract and the determination of the priority of the lien rights as between the Conlins and the Gills.