APPEAL from the Circuit Court of Fayette County; the Hon. E.
HAROLD WINELAND, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 13, 1978.
Plaintiff, Helen Culbertson, appeals from an order of the circuit court of Fayette County denying her suit for partition of 107 acres located in said county and ordering her to convey her interest in the property to Roy Carruthers, the defendant. Defendant had originally filed two separate suits for specific performance of an alleged oral contract to convey as well as a counterclaim in the instant action. In the interest of judicial economy the two separate suits were dismissed and plaintiff was allowed leave to file an amended complaint to which defendant filed an affirmative defense based upon the alleged oral contract. No specific action was ever taken on the defendant's counterclaim to plaintiff's original petition.
A review of the background of this suit is essential to understand the action taken by the trial court. Plaintiff, defendant and 10 other individuals, are the children of Ima and Claude Carruthers, who originally purchased the 107-acre tract in question. By deed dated June 25, 1952, the parents conveyed the property in fee to their children in equal one-twelfth shares, each grantor reserving a life estate therein. Claude Carruthers died in June of 1967, followed by Ima who died March 14, 1975. After the funeral on March 16, 1975, the entire family gathered at the homestead. The eldest son and executor of the estate, Richard Carruthers, read their mother's will in which she expressed a desire that the estate be settled by agreement of the surviving children and that the real estate be sold to one of the children, if any were desirous of purchasing it. It is undisputed that at that time Roy Carruthers, who had been farming the 107-acre tract since 1965 pursuant to a year-to-year lease, offered to buy the remaining eleven-twelfths of the property for $600 per acre. What is not clear, however, is whether a contract was created between Roy and his 11 brothers and sisters at the time of the March 6, 1975, meeting. Letters of either confirmation of the contract or acceptance of the offer were requested to be sent to Richard Carruthers by June 1, 1975. Written documents were forthcoming from all of the defendant's siblings except Daniel and Richard who nevertheless executed quitclaim deeds of their interests on August 25, 1975.
On April 5, 1975 plaintiff wrote a letter to Richard and Roy Carruthers, the pertinent part of which provided:
"I really don't want to sell my land, but! since I am in the middle of the family I shall accept your offer on my part of the land providing I keep the coal, oil and mineral rights for ten years.
I shall not sign this deed until the coal, oil and other mineral rights are stated on it; * * *."
On April 19, 1975, Ray Carruthers responded in a similar letter containing the same conditions as to coal, oil and mineral rights. Sometime after Ima Carruthers' death the Carter Oil Company exercised a pre-existing option to purchase the coal rights underlying the 107-acre tract so that this interest is no longer a subject of dispute; however, the question as to the ownership of the oil, gas and mineral rights survived.
On May 21 and 23, 1975, Richard and Roy visited Ray and Helen, respectively, to personally obtain the latter's signatures on the deed. They were unsuccessful. At that time plaintiff informed defendant that she would prefer to pay a lawyer rather than accept his offer and thereby lose the valuable coal, oil and mineral rights in her portion of the land. Roy Carruthers testified that immediately after the March 16, 1975, family gathering, he took possession of the premises as owner. In April or May of 1975 he sought a $48,000 loan from the Ramsey National Bank with which to purchase the remaining eleven-twelfths of the 107-acre tract. The loan, which was granted on September 23, 1975, and recorded September 24, 1975, was secured by a mortgage on ten-twelfths of the 107-acre tract in question and on 40 acres separately owned by Roy and his wife. Defendant testified that he made repairs of a permanent nature on the barn roof in June and July of 1975 and on the chicken house during the following month.
On November 14, 1975 plaintiff filed a petition requesting that the court partition the interests in the 107-acre tract. Ray Carruthers was named as a party defendant to this action and appeared pro se at the trial level. He did not file a brief in this court, however. Thereafter, on January 13, 1976, defense counsel sent letters to Helen Culbertson and Ray Carruthers purporting to accept the terms of their offers to sell contained in the letters sent to defendant the previous April. Payment was again tendered to and refused by Helen and Ray. On January 30, 1976, Ray Carruthers conveyed to plaintiff Helen Culbertson his one-twelfth of the property, reserving in himself the coal, oil and mineral rights for a period of 10 years.
On February 8, 1977, the cause came for trial in the circuit court of Fayette County. The parties stipulated to the authenticity of various documents which together with plaintiff's pleadings made out a prima facie case for partition. Following defendant Roy Carruthers' presentation of evidence in support of his affirmative defense, the case was taken under advisement until February 17, 1977. On that date the court filed its order and memorandum opinion in which it specifically found that the equities were with the defendant and that the family settlement doctrine in conjunction with the doctrine of part performance would apply to remove the oral contract from the statute of frauds. Plaintiff was ordered to convey her two-twelfths interest in the property, including the coal, oil and mineral rights, to the defendant. In addition, the interest retained by Ray Carruthers was transferred to the defendant by operation of the court's decree. A check payable to Helen Culbertson and Ray Carruthers in the amount of $10,700 representing the sale price of $600 per acre was declared to be on file in the office of the court clerk. After considering plaintiff's supplemental motion to reconsider, the court entered an amended decree on September 19, 1977, which provided that plaintiff be allowed to retain an undivided one-twelfth interest in the oil and gas underlying the premises for a period of 10 years from January 30, 1976, the date on which she purchased Ray Carruthers' one-twelfth interest in the premises, excluding coal, oil and mineral rights. The amended decree specifically incorporated the court's memorandum opinion filed February 17, 1977. This appeal ensued.
Plaintiff contends, inter alia, that the trial court erred in finding that the doctrine of part performance and the policy favoring family settlements removed the oral contract from the statute of frauds. Deferring for a moment a discussion of the merits of this argument, we note at the outset that the application of any of these doctrines presupposes the existence of an agreement. Brunette v. Vulcan Materials Co., 119 Ill. App.2d 390, 256 N.E.2d 44; Hagen v. Anderson, 317 Ill. 173, 177, 147 N.E. 791; 11 Ill. L. & Prac. Compromise and Settlement § 2 (1977); Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co., 42 Ill. App.3d 865, 356 N.E.2d 837, 840.
In its memorandum opinion filed February 17, 1977, the trial court held that "the deeds and letters executed by the various heirs were absolute acceptances of the offer made by Roy G. Carruthers with the exception that two of the heirs expressed a desire to reserve the coal, oil and minerals underlying the tract for a period of ten years." The memorandum further recited that during the March 16 meeting all of the 12 children agreed "without exception" that Roy Carruthers' offer to purchase the land at $600 per acre should be accepted. The court characterized the forthcoming letters as confirmations of the March 16 oral acceptance.
Whether or not an agreement was made in this instance necessarily involves questions of fact as well as questions of law, both of which are reviewable by this court. (Ill. Rev. Stat. 1977, ch. 110A, par. 366(b).) However, there were only minor discrepancies in the testimony of those examined as to the substance of the conversations which occurred at the March 16, 1975 meeting. For example, Richard Carruthers testified that immediately following Roy's offer he, Richard, asked if anyone objected. As no objections were then raised, Richard requested that the offerees "send me a letter stating their acceptance or make any counter-offer, offer, that since it was being offered to the family." The witness later stated that all 10 orally assented to the offer and that in his opinion the mood of the group was serious. Mary Ann Wintler, one of plaintiff's and defendant's sisters, stated that when the offer was made, she thought she needed to consult with a few of the others since she had not kept abreast of land values throughout the years. According to Ms. Wintler, no one accepted the offer immediately. Claude Carruthers, a brother of plaintiff and defendant, testified that he did not agree to sell on March 16, 1975, but accepted in writing some time that April. Indeed, Roy Carruthers himself was equivocal as to the precise statements made by each party to the alleged contract. He explained: "I asked for them to consider and most of them granted that they would accept the offer; and some thought it was too high and wondered how come so much, but all of them ...