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First Nat'l Bk. & T. Co. of Barrington v. Maas

FEBRUARY 14, 1975.

THE FIRST NATIONAL BANK AND TRUST COMPANY OF BARRINGTON ET AL., PLAINTIFFS-APPELLEES,

v.

JACK T. MAAS ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE SULLIVAN delivered the opinion of the court:

This appeal arises from a suit brought by the First National Bank and Trust Company of Barrington, as trustee, on behalf of the individual trust beneficiaries (hereafter collectively referred to as the Bank) to confirm a forfeiture provision in an installment agreement for trustee's deed and to retain the payments made thereunder. The suit sought further to regain possession of the premises by forcible entry and detainer and to remove all clouds on the title. The court issued a final decree of forfeiture finding the Bank entitled to all the relief prayed against all of the defendants. Two of the defendants, Thomas Evans and Rita Evans, appeal challenging (1) the validity of a provision in the agreement for the forfeiture of payments made; (2) the absence of a necessary party; (3) the validity of a real estate contract entered into by both of them but signed only by Thomas Evans; and (4) the sufficiency of the evidence.

On April 1, 1970, the Bank, as trustee, entered into an installment agreement for trustee's deed with defendants Jack Maas and D'Arcy Maas, his wife (the Maases), for the sale of certain real estate located in Barrington, Illinois, for $85,000. The schedule of payments envisioned a flat monthly payment of approximately $650 for principal, interest and taxes and certain lump sum payments, seriatim, through June 15, 1976. Thus, in addition to the $650 monthly payments, $8,000 was due on June 16, 1970; $2,000 on or before November 16, 1970; $12,921 on or before June 15, 1972, and a balance of $50,580 on June 15, 1976.

Paragraph 23 of the agreement provided that the time of payment was of the essence of the contract and that all provisions of the agreement were to be binding upon the assigns of the parties. Upon default by the Maases of any of the agreed payments, the agreement provided in paragraph 3.10 that the plaintiffs could forfeit and determine the contract as follows:

"3.10. In case of the failure of Purchaser to make any of the payments, or any part thereof, or perform any of the Purchaser's covenants hereunder, this Agreement shall, at the option of Beneficiary-Seller be forfeited and determined, and Purchaser shall forfeit all payments made on this Agreement, and such payments shall be retained by Beneficiary-Seller in full satisfaction and as liquidated damages by Beneficiary-Seller sustained, and in such event Beneficiary-Seller shall have the right to re-enter and take possession of the premises aforesaid."

By May 2, 1972, the Maases had failed to make the agreed monthly installment payments due in January, February, March and April of 1972. Notice of intention to forfeit and a demand for immediate possession were served on the Maases on May 8, 1972. No further action had been taken when, on May 30, 1972, the Maases entered into a real estate sales contract with defendants Thomas Evans and Rita Evans, whereby the Evanses contracted to purchase for $90,000 the same property the Maases had purchased from the Bank. This contract, and the rider attached, provided that the Maases were to sell their rights and interests under the installment agreement for trustee's deed. The contract also provided that the Evanses were to pay $20,000 as initial earnest money — $500 which they paid at the execution of the contract on May 30, 1972, and the balance of $19,500 was to be paid within 20 days thereafter. The Bank had consented to this agreement, *fn1 and the Evanses took possession of the premises on July 1, 1972. They had agreed in the contract to pay $650 per month until the July 1, 1973, closing, at which time they were to pay the balance of the purchase price of approximately $70,000. The contract also provided in paragraph 7 that if the Evanses defaulted, the earnest money would be forfeited. Similarly, paragraph 6 of the rider provided that if the Evanses failed to close on July 1, 1973, all funds paid would be forfeited.

The $19,500 balance was not paid by June 20, 1972, and on August 7, 1972, the Evanses and the Maases entered into an agreement with the Bank supplementing both the real estate sales contract between the Evanses and the Maases and the prior installment agreement for trustee's deed. Pursuant to this tripartite supplemental agreement, an escrowee was to receive and hold the earnest money which would be due on August 10, 1972, and the full closing purchase price when paid by the Evanses on July 1, 1973, subject to certain instructions of the beneficiary-sellers to distribute in satisfaction of the installment agreement for trustee's deed.

In the supplemental agreement, all the parties adopted and agreed to all the terms and provisions of the installment agreement for trustee's deed and agreed that its provisions would be binding upon each of them except as modified in the supplemental agreement which, among other things, provided that the Evanses were to commence the $650 monthly payments to the Barrington Realty Company on August 15, 1972, and on the 15th day of each month thereafter until the July 1, 1973, closing, when the balance would be due. The Evanses were to pay $19,500 on August 10, 1972, which was to have satisfied the Maases delinquent installments due for January, February, March, April, May and June of 1972 and the delinquent principal payment of $12,921 due June 15, 1972. The Evanses paid $650 on August 15, 1972, but they failed to pay the $19,500 balance when it became due on August 10, 1972, as provided in the supplemental tripartite agreement.

They still had not paid this $19,500 balance on or about September 15, 1972, when the Bank delivered to the Evanses and the Maases notice of intention to forfeit, with a demand for immediate possession. A declaration of forfeiture was served on the Evanses and the Maases in November of 1972, and filed in the office of the recorder of deeds of Cook County, Illinois, on November 2, 1972. This was in accordance with the provisions of the installment agreement for trustee's deed. On November 9, 1972, the Bank brought this suit against the Maases and the Evanses, asking for a judgment (1) finding they were in default of their obligations to the Bank; (2) giving it possession of the premises; (3) granting it clear title; (4) allowing it to retain all payments received as liquidated damages pursuant to the terms of the agreements; and (5) granting it such other relief as deemed appropriate.

On January 12, 1973, the court ordered the Evanses to pay the deficient monthly installments due in September, October, November and December, 1972 and January, 1973, pursuant to the terms of paragraph 1 of the installment agreement for trustee's deed as readopted in the supplemental Maas-Evans-Bank agreement of August 7, 1972. The Evanses were also ordered to make payments on the 15th of every month thereafter until the contracted closing date of July 1, 1973. That order then continued the matter to April 4, 1973, for a hearing on the failure of the Evanses to pay the $19,500 balance due on the $20,000 earnest money as provided by the real estate sales contract and the supplemental agreement. The matter was thereafter postponed on numerous occasions until trial was finally set for October 10, 1973.

Meanwhile, on July 1, 1973, the date contracted by the Evanses for closing and payment of the balance of the purchase price pursuant to their real estate sales contract with the Maases and the supplemental agreement, the Evanses had paid nothing towards the payment of the full purchase price and failed to make the closing payment due on that date.

Finally, during hearings on October 10, and October 11, 1973, the Evanses represented to the court that sufficient financing would be obtained to satisfy all their obligations to the Bank under the various agreements. Subsequently, the court was informed that full financing had been obtained and the parties tendered a stipulation to dismiss the suit, subject to the satisfaction of the settlement agreement and payment to the Bank of the entire balance of the purchase price plus interest and delinquent taxes. On October 15, 1973, an order of dismissal was entered thereon.

Thereafter, the Evanses failed to satisfy the conditions of the settlement as set forth in the stipulation to dismiss and the order entered thereon, and the Bank petitioned the court to vacate the dismissal order and to set a trial date for final disposition of all matters. A trial of all matters was then held on January 8, 1974, when a judgment was entered granting the Bank the relief prayed for in its petition, and the matter was continued to January 16, 1974, for the entry of a final decree of forfeiture. The Evanses, after the judgment was entered, were again granted additional time by the Bank but failed to raise sufficient funds to cure the defaults. On January 16, 1974, the ...


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