Rothert v. Rothert
| Decision Date | 20 October 1982 |
| Docket Number | No. 17535,17535 |
| Citation | 65 Ill.Dec. 387,441 N.E.2d 179,109 Ill.App.3d 911 |
| Parties | , 65 Ill.Dec. 387 Rolland Ray ROTHERT, a/k/a Rolland R. Rothert, Plaintiff-Counterdefendant- Appellant and Cross-Appellee, v. Robert Henry ROTHERT, Individually, and as Administrator of the estate of Emma E. Rothert, deceased, Kathryn R. Hill, a/k/a Kathryn Hill and Kathryn Elizabeth Rothert, Defendants-Counterplaintiffs-Appellees and Cross-Appellants, and Rolland Douglas Rothert and Oda Rothert, Defendants-Appellees. Rolland Ray ROTHERT, a/k/a Rolland R. Rothert, Plaintiff-Counterdefendant- Appellant and Cross-Appellee, v. Robert Henry ROTHERT, Individually, and as Administrator of the estate of Emma E. Rothert, deceased, Jean Rothert, Kathryn R. Hill, a/k/a Kathryn Hill and Kathryn Elizabeth Rothert, Defendants-Counterplaintiffs-Appellees and Cross- Appellants, and General Telephone Company of Illinois, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Edward F. Casey, Casey & Casey, Springfield, for plaintiff-counterdefendant-appellant and cross-appellee.
Kenneth H. Otten, Nafziger & Otten, Springfield, for defendants-counterplaintiffs-appellees and cross-appellants.
We deal here with owelty.
Owelty is "the amount paid or secured by one owner to another to equalize a partition of property in kind." Webster's Third New International Dictionary 1612 (1976).
This partition action involves two farms in Sangamon County. The farms are owned by two brothers and a sister: plaintiff, Rolland Rothert, and defendants, Robert Rothert and Kathryn Hill (previously Kathryn Rothert). The parties inherited the farms from their father, William Rothert, who died intestate in 1922. William's survivors were his wife, Emma Rothert, and his three children, Rolland, Robert, and Kathryn. Emma died in 1973 and son Robert acted as the administrator of her estate. Plaintiff Rolland has farmed the 160-acre farm in Chatham Township (the Auburn farm) for more than 30 years. Defendant Robert has farmed the 114-acre farm in Cartwright Township (the Pleasant Plains farm) for more than 30 years and has lived on the farm for substantially all of his life.
In 1978, plaintiff filed a complaint in chancery in case number 158-78 seeking partition of the Auburn farm and reimbursement for two-thirds of the costs of improvements made thereon. The major improvements were a new barn, four new grain bins, and a basement that was finished off as living quarters. Named as defendants in this case were Robert Rothert (individually and as administrator of the estate of Emma Rothert), Oda Rothert (Rolland's wife), Rolland Douglas Rothert (Rolland's son), and Kathryn Hill. Defendants Robert and Kathryn filed an answer and counterclaim seeking partition and other relief including an accounting of the farm operation over a period of years.
Also in 1978, Rolland filed a complaint in partition in case number 159-78, seeking partition of the Pleasant Plains farm. Robert, Kathryn, and Jean Rothert (Robert's wife) were named as defendants in this case. General Telephone Company of Illinois was also named as a defendant because of an alleged easement. Again, defendants Robert and Kathryn filed an answer and a counterclaim seeking partition. Robert also sought a lien for improvements he had made on the property and reimbursement from plaintiff for crop expenses.
The two cases were consolidated by court order and tried on September 17 and 18, 1980. A judgment of partition was entered on December 9, 1980, in the consolidated cases. It was adjudged that Rolland, Robert, and Kathryn each owned an undivided one-third interest in each of the farms. It was further adjudged that Rolland was entitled to the enhanced value of the south 80 acres of the Auburn farm for having constructed the basement home. Upon partition in kind, the court ordered that the basement home be included in the parcel assigned to Rolland without charging him for the enhanced value.
Pursuant to article XVII of the Code of Civil Procedure () (Partition Act), three commissioners were appointed and ordered to partition the premises. The commissioners submitted a 48-page appraisal to the court with a letter stating that there could not be a reasonably equitable division of the farms using land only. However, in the letter, the commissioners recommended a division, based on the appraisal, using land and cash. The recommendation was as follows:
Auburn Farm $608,000
Pleasant Plains Farm 319,648
--------
Total Value $927,648
1/3 Value $309,216
One would receive the Pleasant Plains farm $319,648
and pay the other two a total of - 10,432
--------
$309,216
One would receive the improved 80 acres at
Auburn lying south of the road and valued
at $3,850 per acre $308,000
and receive payment of k 1,216
--------
$309,216
One would receive the unimproved 80 acres
at Auburn lying north of the road and
valued at $3,750 per acre $300,000
and receive payment of k 9,216
--------
$309,216
Rolland filed objections to the commissioners' report, maintaining that the value assigned to the Auburn farm was improper because of the addition of $300 per acre for coal underlying the farm. He also objected to the commissioners' recommendation of a division in kind with cash payments.
Following a hearing on the objections, the trial court discounted the value of the coal on the Auburn farm as being too speculative and determined that certain improvements should not have been included in the value of the Pleasant Plains farm but otherwise confirmed the commissioners' report. The court ordered that Robert be awarded the 114-acre Pleasant Plains farm, that Kathryn be awarded the north 80 acres of the Auburn farm, and that Rolland be awarded the south 80 acres of the Auburn farm. Robert was ordered to make payments of $12,260 each to Rolland and Kathryn to equalize the division of the farms. The judgment was based on the following calculations:
Auburn Farm $560,125.00
Pleasant Plains Farm 316,842.00
-----------
Total Value $876,967.00
1/3 Value $292,322.00
Robert receives Pleasant Plains farm $316,842
and pays owelty to Kathryn and Rolland - 24,520
--------
$292,322
Kathryn receives north 80 acres of Auburn $280,062
farm and owelty from Robert k 12,260
--------
$292,322
Rolland receives south 80 acres of Auburn $280,062
farm and owelty from Robert k 12,260
--------
$292,322
The trial court subsequently made an express written finding pursuant to Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)) that there was no just reason for delaying enforcement or appeal.
Plaintiff appeals from the judgment of the trial court and asks this court to reverse the judgment and order a public sale of the farms, or in the alternative, order that a new trial be granted. Defendants cross-appeal from that part of the judgment that discounts the value of the coal in the valuation of the Auburn farm. Defendants also cross-appeal from an award of attorney's fees to plaintiff.
Plaintiff argues that the trial court's judgment, ordering an unequal division of the farms with payments of owelty, was improper.
Section 17-106 of the Partition Act (Ill.Rev.Stat.1981, ch. 110, par. 17-106) provides that, when a court orders partition, it shall appoint three commissioners to make the partition. The commissioners are to allot "the several shares to the respective parties, quality and quantity relatively considered, according to their respective rights and interests as adjudged by the court * * *." (Ill.Rev.Stat.1981, ch. 110, par. 17-108.) If the commissioners find the premises are not susceptible of division without manifest prejudice to the parties, the commissioners are to value each piece of property separately. The commissioners are then directed to make a written report to the court showing what they have done. (Ill.Rev.Stat.1981, ch. 110, par. 17-109.) Section 17-116 of the Act (Ill.Rev.Stat.1981, ch. 110, par. 17-116) provides that if the commissioners report that the premises cannot be divided without manifest prejudice to the owners, the court shall order the premises sold at public sale.
The Partition Act makes no reference to an unequal division of the premises with a payment of owelty. However, the inherent power of the court sitting in equity to make such a division has long been recognized. (Stortz v. Ruttiger (1911), 249 Ill. 494, 94 N.E. 181; see Miller v. Miller (1980), 88 Ill.App.3d 893, 44 Ill.Dec. 212, 411 N.E.2d 118.) The law favors a division of land in kind, rather than a division of proceeds from a sale of the land and, therefore, an unequal division with owelty is preferred over a sale of the premises. See Harris v. Johnson (1976), 42 Ill.App.3d 751, 1 Ill.Dec. 825, 356 N.E.2d 1107; Miller.
Plaintiff argues that the trial court's order must be reversed because the commissioners were not authorized by the trial court to recommend an unequal division with owelty and that their "unauthorized" recommendation...
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