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McDonough Estate_Dispostion of PropertyMasterpiece on the Mississippi BARRY LINDAHL CITY ATTORNEY MEMORANDUM 10 To: Mayor Roy D. Buol and Members of the City Council DATE: March 25, 2010 RE: John J. McDonough, Sr. Estate Enclosed is a copy of a letter from Attorney Mark J. Willging who represents the John J. McDonough Sr. Estate. In 2006, the City conveyed by Quit Claim Deed certain property to Mr. McDonough and his wife. The property was one -half of a portion of Barry Street which had been vacated by City Council Resolution No. 260 -06. Prior to the time the deed was recorded, Mrs. McDonough died. As a result, the Quit Claim Deed is inoperative. Attorney Willging is requesting that the City provide a new Quit Claim Deed for the vacated street to the residual devisees of John J. McDonough Sr. under his last will and testament. I recommend that the City Council authorize the execution and delivery of the attached Quit Claim Deed to the John J. McDonough, Sr. Estate. BAL:tls Enclosure cc: Michael C. Van Milligen, City Manager Gus Psihoyos, City Engineer Ron Turner, Surveyor Mark Willging, Esq. F:\ USERS \tsteckle \Lindahl\ Memos \MayorCouncil_JohnJMcDonoug hSrEstate_032510.doc OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944 TELEPHONE (563) 583 -4113 / FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org STEPHEN J. JUERGENS ROBERT L. SUDMEIER DOUGLAS M. HENRY MARK J. WILLGING A. THEODORE HUINKER DANITA L. GRANT WILLIAM N. TOOMEY JENNY L. HARRIS f JASON D. LEHMAN JASON L. COMISKY ALL ATTORNEYS LICENSED IN IOWA * ALSO LICENSED IN WISCONSIN tALSO ALSO LICENSED IN ILLINOIS Mr. Barry A. Lindahl 300 Main Street Harbor View Place Ste. 330 Dubuque, IA 52001 Dear Barry: Law Offices Of FUERSTE, CAREW, JUERGENS & SUDMEIER, P.C. 200 SECURITY BUILDING 151 WEST 8TH STREET DUBUQUE, IOWA 52001 -6832 March 22, 2010 Re: John J. McDonough, Sr. Estate WILLIAM C. FUERSTE ALLAN J. CAREW (RETIRED) TELEPHONE: (563) 556 -4011 TELECOPIER: (563) 556-7134 E -MAIL: MAILAFUERSTELAW.COM WRITER'S DIRECT E -MAIL ADDRESS MWILLGINGWUERSTELAW. COM We represent the estate of John J. McDonough, Sr., who died on January 27, 2010. At the time of his death Mr. McDonough owned a residence at 2459 Roosevelt Avenue in Dubuque. By quit claim deed dated June 19, 2006, (copy enclosed) the City of Dubuque conveyed to Mr. McDonough and his wife, Frances M. McDonough, one -half of a portion of Barry Street which was vacated. (Copy of Resolution No. 260 -06 is enclosed.) The problem we have in administering Mr. McDonough's estate is that at the time the deed was dated and recorded Frances M. McDonough was deceased, having died on December 27, 2005. Under these circumstances it appears that the deed, at least as to Frances McDonough, is inoperative. (See Sections 336 and 337 of Patton on Titles enclosed.) John J. McDonough's estate is presently being administered. His daughter, Linda M. Becker, is the executor. I think this matter can be cleared up if the City would give a new quit claim deed for the vacated alley to the residual devisees under the John J. McDonough, Sr.'s last will and testament, namely: Linda M. Becker, David J. McDonough, Gary J. McDonough, John J. McDonough, Jr., and Dennis A. McDonough. FUERSTE, CAREW, JUERGENS & SUDMEIER, P.C. March 22, 2010 Page 2 My first inclination was to request the City to provide a correction quit claim deed conveying the subject property to John J. McDonough, rather than John J. and Frances McDonough, but I do not believe that a "correction" quit claim deed relates back to the original deed, and therefore, any "correction" quit claim deed given at this time would also be to a deceased person. Clearly that would only compound the problem. Barry, I have enclosed a new quit claim deed for your consideration. Very truly yours, FUERSTE, CAREW, JUERGENS & SUDMEIER, P.C. MJW/kd enclosures cc: Linda M. Becker Prepared by: Ronald J. Tumer, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563)589 -4270 Retum to: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589 -4270 RESOLUTION NO. 260 -06 RESOLUTION VACATING AND DISPOSING OF CITY INTEREST IN THE NORTHWESTERLY ONE -HALF OF BARRY STREET AND THE SOUTHEASTERLY ONE -HALF OF BARRY STREET IN BARRY SUBDIVISION NO. 2 1N THE CITY OF DUBUQUE, DUBUQUE COUNTY, IOWA Whereas, pursuant to resolution and published notice of time and place of hearing, published in the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, Iowa on this 9 th day of June , 2006, the City Council of the City of Dubuque, Iowa met on the 19th day of June , 2006, at 6:30 p.m. in the Public Library Auditorium, 360 West 11 Street, Dubuque, Dubuque County, Iowa to consider the vacating and disposal for the sale of real estate described as: The Northwesterly One -Half of Barry Street and the Southeasterly One - Haif of Barry Street all in Barry Subdivision No. 2 in the City of Dubuque, Dubuque County, Iowa Whereas, the City Council of the City of Dubuque, Iowa overruled any and all objections, oral or written to the proposal to vacate and dispose of the interest of the City of Dubuque, Iowa, except for easements shown on said Plat of Survey of Barry Subdivision No. 2, in the hereinabove described real estate. Whereas, the City Council of the City of Dubuque, Iowa has determined that a portion of Barry Street from Roosevelt Street northeasterly to a public alley in Barry Subdivision No. 2 is no longer required for public use, and vacating of said portion of Barry Street from Roosevelt Street northeasterly to a public alley in Barry Subdivision No. 2, known as the Northwesterly One -Half of Barry Street in Barry Subdivision No. 2 and the Southeasterly One -Half of Barry Street in Barry Subdivision No. 2 in the City of Dubuque, Dubuque County, Iowa, should be approved. Book . Paae . File Number 2007- 00003523 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the real estate described as the Northwesterly One -Half of Barry Street in Barry Subdivision No. 2 and the Southeasterly One -Half of Barry Street in Barry Subdivision No. 2 in the City of Dubuque, Dubuque County, Iowa, be and the same is hereby vacated. Section 2. That the disposal of the interest of the City of Dubuque, Dubuque County, Iowa, in the real property described as the Northwesterly One - Half of Barry Street in Barry Subdivision No. 2 in the City of Dubuque, Dubuque County, Iowa to the John J. and Frances M. McDonough be and the same is hereby approved for the sum of $400.00. Conveyance shall be by Quit Claim Deed. Section 3. That the disposal of the interest of the City of Dubuque, Dubuque County, Iowa, in the real property described as the Southeasterly One - Half of Barry Street in Barry Subdivision No. 2 in the City of Dubuque, Dubuque County, Iowa to the David O. Neyens be and the same is hereby approved for the sum of $400.00. Conveyance shall be by Quit Claim Deed. Section 4. That the Mayor be authorized and directed to execute a Quit Claim Deed, and the City Clerk be and is hereby authorized and directed to deliver said deed of conveyance to the above named grantees upon receipt of the approved sum in full. Section 5. That the City Clerk be and is hereby authorized and directed to record a certified copy of this resolution in the offices of the City Assessor, Dubuque County Recorder and Dubuque County Auditor. 2006. Atte Passed, approved and adopted this 19th day ofd June anne F. Schneider, CMC, City Clerk Roy D. Buol, Mayor Book . Pave . File Number 2007 - 00003523 CERTIFICATE OF CITY CLERK STATE OF IOWA ) COUNTY OF DUBUQUE ) I, Jeanne F. Schneider, do hereby certify that I am the duly appointed, qualified, and acting Clerk of the City of Dubuque, Iowa in the County aforesaid, and as such Clerk I have in my possession or have access to the records of the proceedings of the City Council. I do further state that the hereto attached Resolution No, 260 -06 is a correct copy of the original Resolution No. 260 -06 approved and adopted by the City Council of the City of Dubuque, Iowa, at a session held by said Council on the 19 day of June, 2006. In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque, Iowa. Dated at Dubuque, Iowa on this 26 day of July, 2006. 62 1:b Jeanne F. Schneider, CMC City Clerk Book . Paae File Number 2007 - 00003523 Prepared by: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589 -4270 Address Tax Statement: John J. and Frances M. McDonough, 1680 Garfield, Apt. 1B, Dubuque, IA 52001 QUIT CLAIM DEED I muIaN I Recorded: 03 /13/2007 0 at 07 PM Fee Amt: $32.00 Page 1 of 5 Revenue Tax: $0.00 KathyuFlynnnThurlow Recorder F11•2007_00003523 The City of Dubuque, Iowa, a municipal corporation of Dubuque County, Iowa, for Three Hundred and 00/100 Dollars ($300.00) and other good and valuable consideration, does hereby Quit Claim unto: John J. and Frances M. McDonough 1680 Garfield, Apt. 1B Dubuque, IA 52001 all its rights, title, and interest in the following described real estate situated in Dubuque County, Iowa, to wit: Northwesterly One -Half of Barry Street, Barry Subdivision No. 2, in the City of Dubuque, Dubuque County, Iowa The City reserves unto itself a perpetual easement including the right of ingress and egress thereto, for the purpose of erecting, installing, constructing, reconstructing, repairing, owning, operating, and maintaining water, sewer, drainage, gas, telephone, television cable, fiber optics, and electric lines as may be authorized by the City of Dubuque, Iowa, as shown on the Plat of Survey of Barry Subdivision No. 2. No declaration of value is required according to Iowa Code Section 428A.1. Deeds with a consideration of $500.00 or Tess are exempt from transfer tax. Iowa Code Sec. 428A.1. This deed is ven pursuant to the authority of Resolution No DG of the City of Dubuque, adopted / / , 2006, the terms and conditions thereof, if any, having been fulfilled. Signed this /e day of -6 2006. CITY OF DUB , QUE, IOWA By: Roy D uol, Mayor CL - 4 C. Book Page , File Number 2007 - 00003.593 (Page 2 of 5) Attest: By: nne F. Schneider, CMC, City Clerk STATE OF IOWA ) ss ) DUBUQUE COUNTY On this /7 day of , 2006, before me, the undersigned, a Notary Public in and for the State of Iowa, sonally appeared Roy D. Buol and Jeanne F. Schneider, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal corporation; that the seal affixed to the foregoing instrument is the corporate seal of said corporation, by the authority of its City Council, as contained in Ordinance No. 2 -5 of the City of Dubugue Code of Ordinances, paced by Reolution of the City Council under Resolution No,"49 - 6 of the City Council on the.'. -day of , 2006; and Roy D. Buol and Jeanne F. Schneider acknowledged the executio =f e instrument to be their voluntary act and deed and t � voluntary . __ nd deed of th corporation, by it voluntarily executed. M ary ' ublic In an • For Said State * L • SUSAN M. WINTER a + COMMISSION NO.183274 `' MY COMMISSION EXPIRES /ow• 2/14/08 Book , Paae , File Number 2007- 00003523 Preparer: Barry A. Lindahl, Esq. Suite 330, Harbor View Place, 300 Main Street, Dubuque, IA 52001 (563) 583 -4113 RESOLUTION NO. 90 -10 AUTHORIZING THE DISPOSAL OF THE INTEREST OF THE CITY OF DUBUQUE, IOWA, IN THE REAL PROPERTY DESCRIBED AS THE NORTHWESTERLY ONE - HALF OF BARRY STREET IN BARRY SUBDIVISION NO. 2 IN THE CITY OF DUBUQUE, IOWA TO THE RESIDUAL DEVISEES UNDER THE JOHN J. MCDONOUGH, SR. LAST WILL AND TESTAMENT Whereas, Resolution No. 260 -06 authorized the vacating and disposal for the sale of real estate described as follows: The Northwesterly One -Half of Barry Street and the Southeasterly One - Half of Barry Street all in Barry Subdivision No. 2 in the City of Dubuque, Dubuque County , Iowa; and Whereas, the Resolution further authorized the disposal of the interest of the City of Dubuque, Iowa in the real property to John J. and Frances M. McDonough; and WHEREAS, by Quit Claim Deed dated June 19, 2006, filed in the office of the Dubuque County Recorder on March 13, 2007 as Instrument No. 2007 - 00003523, the City of Dubuque conveyed the above - referenced property to John J. and Frances M. McDonough. WHEREAS, as of the date of said quit claim deed, Frances M. McDonough was deceased, having died on December 27, 2005. WHEREAS, said quit claim deed was inoperative as to the undivided one -half interest in such real property conveyed to Frances M. McDonough. WHEREAS, John J. McDonough, Sr., is now deceased and the children of John J. McDonough, Sr. and Frances M. McDonough request that a quit claim deed be provided to them as the residual devisees under the John J. McDonough, Sr., last will and testament, namely: Linda M. Becker, David J. McDonough, Gary J. McDonough, John J. McDonough, Jr., and Dennis A. McDonough. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The Mayor is authorized and directed to execute the Quit Claim Deed, a copy of which is attached hereto. The City Clerk is hereby authorized and directed to record a certified copy of this Resolution in the Office of the Dubuque County Recorder. Attest: Passed, approved and adopted this 5th day of April , 2010. .d Jeanne F. Schneider, City Clerk Jeanne F. Schneider, City Clerk Roy D. uol, Mayor F:\ USERS \tsteckle \Lindahl\ Resolutions\AuthorizingDisposalRealPropertyJohnJMcDonoughEstate _032510.doc Prepared by and Return to: Mark J. Willging, AT0008492, Fuerste, Carew, Juergens & Sudmeier, P.C., 151 West 8th St., Suite 200, Dubuque, IA 52001; Telephone: (563) 556 -4011 Address Tax Statement: Linda M. Becker 3115 Shiras Avenue Dubuque, IA 52001 QUIT CLAIM DEED The City of Dubuque, Iowa, a municipal corporation of Dubuque County, Iowa, for Ten Dollars ($10.00) and other good and valuable consideration, receipt of which is hereby acknowledged, does hereby quit claim unto Linda M. Becker, David J. McDonough, Gary J. McDonough, John J. McDonough, Jr., and Dennis A. McDonough, all of its right, title, interest in the following described real estate situated in Dubuque County, Iowa, to wit: Northwesterly One -Half of Barry Street, Barry Subdivision No. 2, in the City of Dubuque, Dubuque County, Iowa. The City reserves unto itself a perpetual easement including the right of ingress and egress thereto, for the purpose of erecting, installing, constructing, reconstructing, repairing, owning, operating, and maintaining water, sewer, drainage, gas, telephone, television cable, fiber optics, and electric lines as may be authorized by the City of Dubuque, Iowa as shown on the Plat of Survey of Barry Subdivision No. 2. No Declaration of Value is required according to Iowa Code Section 428A.1. Deeds with a consideration of $500 or less are exempt from transfer tax. Iowa Code Section 428A.1. This deed is given pursuant to the authority of Resolution No. 260 -06 of the City of Dubuque, adopted June 19, 2006, the terms and conditions thereof, if any, having been fulfilled. Signed this 5th day of Apr i 1 , 2010. Attest: Bv: Jeanne F. Schneider, City Clerk SPACE ABOVE THIS LINE FOR RECORDER City of Dubu ,/, By: Roy ?.. Buol, Mayor STATE OF IOWA ) ss: COUNTY OF DUBUQUE ) On this 5th day of April , 2010, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Roy D. Buol and Jeanne F. Schneider, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal corporation; that the seal affixed to the foregoing instrument is the corporate seal of said corporation, by the authority of its City Council, as contained in Ordinance 2 -5 of the City of Dubuque, Code of Ordinances, passed by Resolution of the City Council under Resolution 260 -06 of the City Council on the 19th day of June, 2006; and Roy D. Buol and Jeanne F. Schneider acknowledged the execution of the instrument to be their voluntary act ar drdee and the voluntary act and deed of the corporation, by it voluntarily execute. •11 .4,d otary Public in an for said State SUSAN M. WINTER COMMISSION NO.183274 MY COMMISSION EXPIRES 2/14/11