Beal v. Schewe

• Decision Date: 16 September 1997
• Docket Number: No. 4-96-0934,4-96-0934
• Citation: Beal v. Schewe, 683 N.E.2d 1019, 291 Ill.App.3d 204 (Ill. App. 1997)
• Parties: , 225 Ill.Dec. 516 Lawrence J. BEAL, Plaintiff-Appellant, v. Louise H. SCHEWE, Executor of the Will of Karl H. Schewe, Deceased, and Louise H. Schewe, Individually, Defendants-Appellees.
• Court: Appellate Court of Illinois

Page 1019

683 N.E.2d 1019

291 Ill.App.3d 204, 225 Ill.Dec. 516

Lawrence J. BEAL, Plaintiff-Appellant, v.Louise H. SCHEWE, Executor of the Will of Karl H. ScheweDeceased, and Louise H. Schewe, IndividuallyDefendants-Appellees.

No. 4-96-0934

Appellate Court of Illinois Fourth District.

Argued June 17, 1997.

Decided Aug. 19, 1997.

Rehearing Denied Sept. 16, 1997.

Gerald J. Sramek(argued)Richard F. Loritz, Barrett, Sramek & Jasinski, Palos Heights, for Lawrence J. Beal.

Stephen R. Kaufmann(argued), Peggy J. Ryan, Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., Robert M. Bellatti, Shari L. West, Bellatti & Barton, Springfield, for Louise H. Schewe.

Justice GARMANdelivered the opinion of the court:

PlaintiffLawrence J. Beal filed a probate claim against the estate of Karl Schewe and a separate complaint against Louise H. Schewe(hereinafter defendants) in the circuit court of Sangamon County.Plaintiff alleged defendants owed him money under a real estate contract.The two actions were consolidated and defendants filed a motion for judgment on the pleadings.The trial court granted defendants' motion and plaintiff now appeals.We affirm.

On May 6, 1989, plaintiff entered into a real estate contract with defendants to purchase farmland.The contract provided, in part:

"I, [plaintiff](Purchaser)[,] agree[ ] to purchase at a price of $600,000.00 on the terms set forth herein, the following described real estate in __________ County, Illinois:

The farm near Richview, Illinois, containing 980 acres, with about 575 tillable acres, together with all improvements thereon.See attached legal description.

* * *

[C]ommonly known as farm of 980 acres, Richview, Illinois."

A legal description of the land was attached to the contract.The second paragraph of the contract stated:

"[Defendants], as titleholders, (Seller) agree[ ] to sell the real estate and the property, if any, described above at the price and terms set forth herein, and to convey or cause to be conveyed to Purchaser or nominee title thereto (in joint tenancy) by a recordable [w]arranty deed."

A rider to the contract contained the following provisions:

"1.It is understood and agreed that Seller will retain possession of all tillable land which is planted and under crop through the harvest and removal of said crop[--]but in no event shall Seller retain possession of the crop lands beyond December 31, 1989.All 1989 crops proceeds are the property of Seller.Upon and after harvest, Seller shall leave the land in a good and proper condition for continued farm purposes.The Agreements in this paragraph shall survive the closing hereof.

2. SURVEY.Seller shall deliver to Purchaser on or before fifteen (15) days from the date hereof any existing survey or plat of survey in the possession of the Seller, or other existing documents which show:

A.The boundaries and correct legal description thereof.

B.The net number of acres excluding any right-of-way and easements, if any.

C.That same is free of encroachments thereon.

D.The location and course of road rights-of-way and of all easements, either visible or recorded, and other servitudes to subject Premises."

On June 14, 1989, the sale of the farmland was consummated by defendants' delivery of a warranty deed to Rolling Hills Farm, Inc.(Rolling Hills), a corporation operated by plaintiff.The corporation then deeded the property to plaintiff.

On February 1, 1995, Karl Schewe died.On August 11, 1995, plaintiff filed a claim against Karl Schewe's estate, alleging that the farmland conveyed to him by defendants was deficient by approximately 32 acres.A survey of the land completed after delivery of the warranty deed showed the property contained only 948.185 acres.Plaintiff claimed the number of acres was considered material by the parties and affected the agreed-upon consideration.As a result, he overpaid defendants by approximately $19,500.On August 17, 1995, plaintiff filed a separate complaint against Louise containing the same allegations.

Defendants each filed an answer in which they denied the contract was for the sale of "980 acres."They claimed both parties relied upon the legal description of the property (with no reference to a specific number of acres) and the contract merely referred to the property as being "commonly known" as a farm of 980 acres.Defendants further denied the property was sold based upon a per-acre price.Rather, it was sold as a lump-sum purchase.Defendants also included an affirmative defense, alleging that upon acceptance of the deed by plaintiff, the contract merged into the deed and all warranties and agreements in the contract concerning the conveyance became void.

On May 14, 1996, the trial court consolidated the actions and ordered the parties to file cross-motions for summary judgment.On June 13, 1996, defendants filed a motion for judgment on the pleadings pursuant to section 2-615(e) of the Illinois Code of Civil Procedure(Code)(735 ILCS 5/2-615(e)(West 1994)).Defendants alleged (1) the sale of the farm was "in gross" and, as such, the legal description of the property was controlling in the case of a discrepancy as to the number acres and (2) the contract merged into the deed and extinguished plaintiff's claim for damages on the contract.Defendants also filed a memorandum in support of the motion.

On August 28, 1996, the trial court granted defendants' motion for judgment on the pleadings.The court found that the representations of the contract merged into the deed, thus extinguishing plaintiff's claims.The court also determined the sale of the farmland was an "in gross" sale and, therefore, no action could be maintained against defendants based on a deficiency in acreage.

Plaintiff filed a motion to reconsider, which was denied by the trial court.Plaintiff now appeals, arguing the trial court erred in granting defendants' motion for judgment on the pleadings.

A motion for judgment on the pleadings attacks, as a matter of law, the sufficiency of a plaintiff's complaint to state a cause of action.Foley v. Santa Fe Pacific Corp., 267 Ill.App.3d 555, 560, 204 Ill.Dec. 562, 566, 641 N.E.2d 992, 996(1994).On appeal, a decision by the trial court to grant such a motion is reviewed de novo.Toombs v. City of Champaign, 245 Ill.App.3d 580, 583, 185 Ill.Dec. 755, 756, 615 N.E.2d 50, 51(1993).

In reviewing a trial court's grant of a motion for judgment on the pleadings, this court must determine whether the allegations in the complaint, when viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted.Vanek v. Illinois Farmers Insurance Co., 268 Ill.App.3d 731, 732, 205 Ill.Dec. 863, 865, 644 N.E.2d 419, 421(1994).If no set of facts can be proved under the pleadings that would entitle the plaintiff to relief, the reviewing court should affirm the trial court's order.Mount Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 115, 214 Ill.Dec. 156, 160, 660 N.E.2d 863, 867(1995);Vanek, 268 Ill.App.3d at 732, 205 Ill.Dec. at 865, 644 N.E.2d at 421.

Plaintiff contends the allegations of his complaint sufficiently state a cause of action.Specifically, he claims the pleadings show that sale of the farm was "by the acre" rather than "in gross."For support, he cites Hagenbuch v. Chapin, 149 Ill.App.3d 572, 102 Ill.Dec. 886, 500 N.E.2d 987(1986).

In Hagenbuch, the defendants sold farmland at an auction.Under the terms of the sale, bids were submitted on a per-acre basis for what was believed to be 129 acres of land.Plaintiffs submitted the highest bid at $2,610 per acre and purchased the land for $336,690.Subsequent to the sale, plaintiffs learned the farm contained only 123 acres.They filed an action to recover for the deficiency.The trial court held the sale was "in gross" and awarded summary judgment to the defendants.Hagenbuch, 149 Ill.App.3d at 574, 102 Ill.Dec. at 888, 500 N.E.2d at 989.The appellate court reversed, finding the number of acres was considered material to the parties and that the sale was "by the acre."Hagenbuch, 149 Ill.App.3d at 578, 102 Ill.Dec. at 890, 500 N.E.2d at 991.That court stated:

"Where a farm is sold and described as containing any certain number of acres, a presumption arises that the sale is 'by the acre' and not 'in gross.'This presumption is not lightly overcome and may be rebutted only upon clear and convincing proof that the parties intended it to be a sale 'in gross.' "Hagenbuch, 149 Ill.App.3d at 575, 102 Ill.Dec. at 888, 500 N.E.2d at 989.

In this case, plaintiff points out that the real estate contract referred to the property as "[t]he farm near Richview, Illinois, containing 980 acres, with about 575 tillable acres," and as the "farm of 980 acres."Therefore, he claims, the trial court should have presumed the sale was by the acre and not in gross.

Moreover, plaintiff relies upon Fitton v. Barrington Realty Co., 273 Ill.App.3d 1017, 210 Ill.Dec. 814, 653 N.E.2d 1276(1995), and asserts the trial court in the present case was unable to determine from the pleadings, as a matter of law, whether the amount of acreage was a material factor in the purchase and whether the sale was "by the acre" or "in gross."In Fitton, the plaintiffs purchased, from the defendants, a home and the surrounding land consisting of approximately 2.39 acres.Following the sale, the plaintiffs discovered the property contained only 1.5 acres of land.They filed suit against the defendants for the deficiency.The trial court awarded summary judgment to the defendants and the plaintiffs appealed.On appeal, the first district found that an issue of fact remained as to whether the sale was "by acre" or "in gross" and reversed the trial court's grant of summary judgment.Fitton, 273 Ill.App.3d at 1022, 210 Ill.Dec. at 818, 653 N.E.2d at 1280.Specifically, the court noted:

"[T]he contract...