Martin v. Prairie Rod and Gun Club

• Court: Appellate Court of Illinois
• Writing for the Court: ALLOY; BARRY, P. J., and STOUDER
• Citation: Martin v. Prairie Rod and Gun Club, 382 N.E.2d 1295, 65 Ill.App.3d 952, 22 Ill.Dec. 597 (Ill. App. 1978)
• Decision Date: 21 November 1978
• Docket Number: No. 78-173,78-173
• Parties: , 22 Ill.Dec. 597 Iola MARTIN et al., Plaintiffs-Appellees, v. PRAIRIE ROD AND GUN CLUB, an Illinois not-for-profit Corporation, Defendant- Appellant.

Page 1295

382 N.E.2d 1295

65 Ill.App.3d 952, 22 Ill.Dec. 597

Iola MARTIN et al., Plaintiffs-Appellees, v. PRAIRIE ROD AND GUN CLUB, an Illinois not-for-profit Corporation, Defendant- Appellant.

No. 78-173.

Appellate Court of Illinois, Third District.

Nov. 21, 1978.

Richard Whitman, Kritzer, Stansell, Critser & Whitman, Monmouth, for defendant-appellant.

James R. Standard, Standard & Tenold, Monmouth, for plaintiffs-appellees.

ALLOY, Justice:

This is an interlocutory appeal pursuant to Supreme Court Rule 308 (Ill.Rev.Stat.1977, ch. 110A, par. 308) from an order of the Circuit Court of Henderson County denying the motion to dismiss of defendant Prairie Rod and Gun Club to "Count III" filed in the Circuit Court by plaintiff. Counts I and II, the only then existing counts in the complaint on appeal, had been dismissed pursuant to the opinion and mandate of this Court in Martin v. Prairie Rod and Gun Club (3d Dist. 1976), 39 Ill.App.3d 33, 348 N.E.2d 306. A brief summary of the underlying facts and previous proceedings is necessary at this time for an adequate consideration of our disposition of this cause on appeal.

On September 29, 1932, Charles and Rena Pence conveyed to Prairie Rod and Gun Club (hereinafter referred to as "Club") their 111 acre farm. A written agreement was executed, at that time, which recited as consideration for the conveyance, the Club's undertaking to pay the indebtedness of Charles and Rena Pence, in the amount of $3,407.94. The deed and the separate agreement were recorded. The agreement also provided that, in further consideration for the deed of the real estate, the Club promised and agreed (1) to lease to the Mr. and Mrs. Pence for their lifetime, 70 acres of the land (apparently the farm house and tillable land); (2) to give the Pence couple the first pre-emptive right to purchase the land if at any time the Club wished to sell; (3) to give the heirs of Mr. and Mrs. Pence the same pre-emptive right of purchase (the price and conditions and terms of sale would be prescribed by the Club and certain procedures for notification of the heirs were referred to); and (4) to grant to the Pence couple, the lifetime privilege of hunting and trapping on the land. Mr. and Mrs. Pence, in addition to their conveyance of the real estate, agreed to act as caretakers of the premises during the lifetimes of the Pences.

The Pences both died prior to 1971. In November of 1971, the Club determined, apparently, to sell the real estate and solicited bids for that purpose. The terms of the bids solicited contained a provision that the bids were to remain open for 60 days to allow for the heirs' pre-emptive right to purchase, pursuant to the 1932 agreement. Notice, as dictated by the same agreement, was published in a local newspaper.

Two groups of heirs appeared and attempted to exercise the pre-emptive rights under the agreement. A tender was made by plaintiffs. The Club, however, then abandoned its plan or desire to sell the farm and refused to sell to anyone. The complaint which was filed alleged that shortly thereafter the shareholders of the Club sold their shares in the Club to third parties. An action was instituted on behalf of the heirs for specific performance of the agreement. The trial court granted such heirs summary judgment in favor of the heirs. An appeal from the order of the circuit court granting summary judgment to plaintiffs and from the denial, by the trial court, of the Club's motion to dismiss the complaint, was taken to this Court by the Club. Martin v. Prairie Rod and Gun Club (3d Dist. 1976), 39 Ill.App.3d 33, 348 N.E.2d 306.

We determined that the provision creating the pre-emptive right to purchase in the heirs was void, Ab initio, as being violative of the rule against perpetuities. We found that the court was in error in entering summary judgment for the plaintiffs and also erred in not granting the Club's motion to dismiss. A petition for rehearing to this Court by the plaintiffs was denied. Thereafter, a petition for leave to appeal to the Illinois Supreme Court from the determination of the Appellate Court was also denied by the Supreme Court. The mandate of this Court was issued in January of 1977. Thereafter, in June 1977, the Circuit Court of Henderson County granted plaintiffs leave to file what was denominated and described as "Count III" of the complaint in this cause. Such Count, by its terms, seeks to have the entire transaction between the Pences and the Club rescinded and title to the land, presumably, vested in the heirs through the Illinois intestacy laws.

It is alleged in the document described as "Count III" that the voided provisions of the agreement, creating the pre-emptive right in the heirs, was a material and integral part of the contract and that the invalidity of that provision renders invalid and void the entire agreement. The Club filed motions to dismiss Count III. These motions were denied by the trial court. The appellant-Club then moved for an immediate interlocutory appeal to this Court from the denial of its motion to dismiss. The trial court found that the denial of the motion to dismiss involved questions of law as to which there were substantial grounds for differences of opinion and...