Hagenbuch v. Chapin
| Decision Date | 06 November 1986 |
| Docket Number | No. 3-85-0458,3-85-0458 |
| Citation | 500 N.E.2d 987,149 Ill.App.3d 572 |
| Parties | , 102 Ill.Dec. 886 Henry I. HAGENBUCH, Wendy H. Hagenbuch, Charles B. Hagenbuch and Ethel M. Hagenbuch, Plaintiffs-Appellants, v. Mabel M. CHAPIN and Charles D. Chapin, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
George C. Hupp, Jr. (argued), Hupp, Lanuti, Irion & Martin, PC., Ottawa, for Henry I. Hagenbuch, Wendy H. Hagenbuch, Charles B. Hagenbuch and Ethel M. Hagenbuch.
Louis Olivero, Gary W. Wangler (argued), Peru, for Mabel M. Chapin and Charles D. Chapin.
The matter before us concerns a dispute over the sale by auction of defendants' farm. The notice of public auction advertising the sale described the real estate as:
Among the terms of sale listed in the announcement, which are relevant to this action, were: * * *. On the date of the auction, October 29, 1983, plaintiffs' high bid of $2610.00 per acre was accepted. An agreement for warranty deed was executed by the parties accordingly. The agreement set forth the computation of the sale price as "$2610.00 per acre X 129 acres = $336,690.00."
Prior to the December 3, 1983 closing, plaintiffs questioned the acreage and demanded that the purchase price be corrected to reflect a deficiency. It does not appear that the amount of such deficiency was known by either party at this point. In any event, the defendants refused the demand but ordered a survey to be conducted. The sale was closed as scheduled. The warranty deed delivered on December 3, 1983, described the property in question as:
"The South Half of the Northwest Quarter of Section 10 and the North 70 acres of the Southwest Quarter of said Section 10, all in Township 34 North, Range 2, East of the Third Principal Meridian, EXCEPTING however, the South 26 2/3rds rods of the East 120 rods of the North 70 acres of the Southwest Quarter of said Section 10, and EXCEPTING the North 230 feet of the West 190 feet of the South Half of the Northwest Quarter of said Section 10, subject to any and all easements and restrictions of record, all being situated in the County of LaSalle, in the State of Illinois, containing 129 acres, more or less."
On December 29, 1983, the survey ordered by defendants was completed. The survey established that, in fact, there were only 127.143 acres within the legally described boundaries of the farm, and that uneven fence lines over the years and a deed overlap resulted in a further deficiency of about 4 acres in the total area of the farm conveyed.
On April 5, 1984, plaintiffs filed a complaint in the circuit court of LaSalle County praying for damages for the deficiency in acreage conveyed. Defendants answered. Thereafter, both parties moved for summary judgment. At the hearing on the motions, the parties agreed that the sole issue was whether the sale of the farm was "in gross" or "by the acre." On June 20, 1985, the court found that "the actual number of acres delivered in the possession of the plaintiffs was 122.97, that there is no question of fraud or fraudulent misrepresentation, [and] that the sale * * * was a sale in gross and not a sale by the acre." The court, therefore, concluded that "plaintiffs, in the absence of fraud, do not have a cause of action for the deficiency in the number of acres conveyed by the defendants." Judgment in favor of defendants was granted.
In this appeal, plaintiffs again raise a single issue--whether the sale of defendants' farmland was "in gross" or "by the acre."
The general rule of law controlling here is not disputed. Where the sale is in gross--for a lump sum regardless of the acreage--the vendor is not liable for any deficiency in the acreage except for fraud. (Rotermund v. Lauritzen (2d Dist.1922), 225 Ill.App. 170.) By contrast, where the sale is by the acre, the vendor will be held liable for such deficiency. Wadhams v. Swan (1884), 109 Ill. 46.
Contracts for sales of land in gross have been described as contracts of hazard and are not favored in the law. 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. Where proof of the parties' intention is unclear or ambiguous, "the courts, not favoring contracts of hazard, will always construe the same to be contracts of sale per acre * * *." (Huffman v. Landes (1934), 163 Va. 652, 659, 177 S.E.200.) Finally, where the number of acres is considered material by the parties in that it affects the consideration agreed upon, a misrepresentation or mutual mistake of fact as to the acreage entitles the purchaser to a judicial remedy even though the sale was not technically "by the acre." Paine v. Upton (1882), 87 N.Y. 327.
We agree with the plaintiff that the trial court erred in its conclusion that the sale here was "in gross." Clearly, there were certain aspects of the sale that are characteristic of sales "in gross"--i.e., the farm was offered as a single, undivided parcel, rather than separate tracts; a survey was not to be provided; and, the caveat "more or less" appears to place the risk of an acreage discrepancy on the purchaser. Nonetheless, we do not find these aspects sufficiently probative of the parties' intent to overcome the presumption that the sale in this case was "by the acre." The number of acres--129, more or less--was clearly set forth in the defendants' notice of sale by public auction. Bidding was invited and cast on a per acre basis. Thus, the full sale price of $336,690 was never bid as such, but was later determined by multiplying 129 acres times the plaintiffs' high bid of $2610 per acre. Prior to the closing, plaintiffs demanded a reduction in the sale price to reflect an acreage deficiency. On these facts it must be concluded that the number of acres was considered material by the contracting parties.
The language "more or less" in the description of the land does not transform a sale by the acre into one "in gross." "More or less" is language of precaution used in deeds to cover slight and unimportant inaccuracies such as those incident to measurement by different surveyors and variations in the instruments used. (Koch v. Bird (1913), 174 Mich. 594, 140 N.W. 919.) In the present case, the deficiency comprises approximately 6 acres and results from various causes, including adverse possession and a deed overlap. Under the facts and circumstances presented here, we cannot say that defendants have established by clear and convincing proof that both parties intended a sale "in gross" rather than "by the acre."
Next, defendants argue that plaintiffs are precluded from recovery of damages by operation of the doctrine of merger. While defendants' argument is not without merit, we must reject the broad sweep of this contention. The doctrine of merger operates so as to extinguish a remedy at law for a deficiency in acreage where a party affirms a contract by accepting a deed and then attempts to sue for damages based on a breach of the terms of the underlying contract. The doctrine is not a popular one with modern ...
To continue reading
Request your trial
-
Czarobski v. Lata
...& Schwartz v. Tapanes, 164 Ill.App.3d 427, 429, 115 Ill.Dec. 530, 517 N.E.2d 1216 (1987) (same); Hagenbuch v. Chapin, 149 Ill.App.3d 572, 576-77, 102 Ill.Dec. 886, 500 N.E.2d 987 (1986) (recognizing exception to merger doctrine where the parties were mutually mistaken about the parcel's Pla......
-
State ex rel. Secretary of Dept. of Transp. v. Regency Group, Inc.
...price. Accordingly, on this approach, the State is entitled to a per-acre proportinate recovery. Hagenbuch v. Chapin, 149 Ill.App.3d 572, 102 Ill.Dec. 886, 500 N.E.2d 987 (1986); Quick v. Williams, 219 Mo.App. 336, 271 S.W. 834 (1925); See § E, Even assuming that the sale here was in gross,......
-
Beal v. Schewe, 4-96-0934
...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 submitt......
-
Jordan v. Knafel
...Contracts § 152 (1981)), and as recognized in Bentley v. Slavik, 663 F.Supp. 736 (S.D.Ill.1987) citing Hagenbuch v. Chapin, 149 Ill.App.3d 572, 102 Ill.Dec. 886, 500 N.E.2d 987 (1986), provides that if a mistake by both parties "as to a basic assumption on which the contract was made has a ......