Fechtner v. Lake County Sav. and Loan Ass'n

• Decision Date: 24 October 1975
• Docket Number: No. 74--125,74--125
• Citation: Fechtner v. Lake County Sav. and Loan Ass'n, 337 N.E.2d 193, 33 Ill.App.3d 307 (Ill. App. 1975)
• Parties: Donald R. FECHTNER et al., Plaintiffs-Appellants, v. LAKE COUNTY SAVINGS AND LOAN ASSOCIATION, an Illinois Savings and Loan Association, Defendant-Appellee, and Chicago Title Insurance Company, a corporation, Defendant.
• Court: United States Appellate Court of Illinois

Page 193

337 N.E.2d 193

33 Ill.App.3d 307

Donald R. FECHTNER et al., Plaintiffs-Appellants, v. LAKE COUNTY SAVINGS AND LOAN ASSOCIATION, an Illinois Savings and Loan Association, Defendant-Appellee and Chicago Title Insurance Company, a corporation, Defendant.

No. 74--125.

Appellate Court of Illinois, Second District, First Division.

Oct. 24, 1975.

Rehearing Denied Dec. 4, 1975.

Peterson, Ross, Rall, Barber & Seidel, J. Robert Geiman, W. Clyde Jones, Chicago, for plaintiffs-appellants.

Daly & Daly, Waukegan, Joseph N. Sikes, Grayslake, for defendant-appellee.

GUILD, Justice.

Plaintiffs appeal from the dismissal with prejudice of Count I of their complaint for failure to state a cause of action. Count I was directed against the defendant, Lake County Savings and Loan Association (the Association) and sought damages for breach of the covenant against encumbranches contained in a warranty deed and attorney's fees. Count II of the complaint, directed against the defendant Chicago Title Insurance Company, which is not a party to this appeal, is still pending in the trial court. The issues on appeal are whether Count I of the complaint states a cause of action; whether plaintiffs' motion for a judgment on the pleadings should be granted; and whether plaintiffs should be awarded reasonable attorney's fees.

In their complaint against the Association, plaintiffs alleged that plaintiffs Donald and Judith Fechtner were the purchasers under a contract to purchase certain realty and that the plaintiff, Timmer, was the holder of a note secured by a mortgage lien against the premises. Plaintiffs further alleged that the Association executed a warranty deed to the Fechtners in exchange for $15,087.74. Thereafter, the Chicago Title Insurance Company's commitment for title insurance showed five objections relating to judgments, totaling $10,519.76 against one Robert Geiger. Plaintiffs then prayed for judgment against the defendant Association in that amount or in an amount as will be required to satisfy the judgments against Robert Geiger, plus costs and attorney's fees. Attached to the complaint were, Inter alia, a copy of the commitment for title insurance issued by the Chicago Title Insurance Company carrying an effective date of March 14, 1973, a copy of the warranty deed dated March 30, 1973 and a copy of the commitment for title insurance issued by Chicago Title Insurance Company carrying an effective date of April 13, 1973 showing five objections relating to judgments totaling in excess of $10,000.

Upon defendant's motion, the trial court dismissed Count I of the complaint with prejudice and made an express written finding that there was no just reason for delaying appeal therefrom. It is from this order that plaintiffs appeal.

Section 8 of the Conveyances Act (Ill.Rev.Stat.1973, Ch. 30, § 8) provides, Inter alia, that every...