APPEAL from the Circuit Court of St. Clair County; the Hon.
CARL H. BECKER, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 11, 1977.
The plaintiffs, C. Jackson Pfeffer and Lora D. Pfeffer, filed in the circuit court of St. Clair County a complaint for a declaratory judgment and injunctive relief regarding a certain deed by which they conveyed two parcels of land (hereafter Parcel I and Parcel II) to the defendant, Lebanon Land Development Corporation. Defendant filed not only its answer and counterclaim for a declaratory judgment, but also a motion for summary judgment with a supporting affidavit. Plaintiffs also moved for summary judgment and filed plaintiffs' affidavit (with the consent of defendant's counsel, the plaintiffs' affidavit was that of plaintiffs' attorney and six days after the hearing, Mr. Pfeffer filed an affidavit identical to that of his attorney). During the hearings on the summary judgment motions, both parties' counsel assured the court that the only evidence to be considered was the pleadings, affidavits, and deed.
After arguments, the court ruled in plaintiffs' favor and in addition, issued a permanent injunction prohibiting defendant from using Parcel II for any purpose other than a golf course. Defendant's motions to reconsider were denied. The defendant has brought this appeal contending that the court erred in construing the deed in question and in entering a permanent injunction without affording defendant a hearing.
The record indicates that on December 12, 1968, for the consideration of $80,000, the plaintiffs conveyed Parcel I and Parcel II to the defendant. The controversy arose regarding the language in the deed conveying Parcel II. The clause in the deed stated:
A tract of land being part of Lot 6, part of the Southeast Quarter of Section 23, Township 2 North Range 7 West of the Third Principal Meridian, St. Clair County, Illinois; reference being had to the plat thereof recorded in the Recorder's Office of St. Clair County, Illinois in Book of Assessor's Plats Lands North No. 2 on page 26; also part of Lots No. 45 and 46 of "PERRYMAN'S SUBDIVISION" of the East part of said Lot 6 part of said Section 24; reference being had to the plat thereof recorded in the Recorder's Office of St. Clair Couny, Illinois, in Book of Plats "I" on page 51, all being more particularly described as follows, to wit: Beginning the survey thereof at a point in the North line of the aforesaid Lot 6, a distance of 1021.7 feet East of the Northwest corner thereof; thence continuing East along said North line of Lot 6, a distance of 722.7 feet to a point; thence South 40 degrees 25 minutes East a distance of 217.45 feet to a point in the Northwesterly right of way line of State Aid Route No. 2, also known as Belleville Street; thence Southwesterly along said Northwesterly Right of Way line of said State Aid Route No. 2 to a point which intersects a line drawn South 2 degrees 30 minutes East from the point of beginning; thence North 2 degrees 30 minutes West a distance 409.1 feet to the place of beginning.
Excepting a strip of land of Lot 6 herein described as follows: Beginning at a set pipe on the Southerly line and continuing for a distance of 100 feet to the Southwesterly corner of Lot 6; thence Northerly along the West boundary of Lot 6 for a distance of 409.1 feet to a concrete monument; thence Easterly for another distance of 100 feet to a set pipe; thence in a Southerly direction to the point of beginning; providing said property will revert to the Grantors herein if such parcel of land is not used and maintained for golf course purposes.
Excepting the coal underlying the surface of said land and all rights and easements in favor of the estate of said coal." (Emphasis added.)
The court's order held in part:
"2. Plaintiff's Motion for Summary Judgment is hereby granted and the provisions of the reverter clause contained in such deed, to-wit:
`providing said property will revert to the Grantors herein if such parcel of land is not used and maintained for golf course purposes.'
apply to Parcel II as further set forth in such deed, but not to Parcel I, and Defendant's Motion for Summary Judgment is denied."
The defendant asserts that the court erred in construing the deed to hold that the reverter provision applied to the entire tract of Parcel II. The defendant contends that the language "providing said property will revert to the Grantors herein if such parcel of land is not used and maintained for golf course purposes" applies only to the immediately preceding described 100- by 409-foot tract. In support of his contention, defendant argues that in the phrase, "Excepting a strip of land of Lot 6 * * *" which precedes the description of the 100- by 409-foot tract, the word "excepting" does not operate to create an exception, but instead, creates a reservation. The thrust of defendant's theory is that since, in this instance, the exception functions as a reservation, the grantors intended to convey the 100- by 409-foot ...