APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT HAYES, Judge, presiding.
MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 17, 1980.
This appeal arises from the auction sale of a parcel of real estate located in Monroe County, Illinois. The parties involved in the sale were Mary Blake Wilfong, seller; Clark Gabel and Shirley M. Gabel, buyers; and W.A. Schickedanz Agency, which acted as realtor.
The seller agreed to pay the realtor $400 plus advertising costs for conducting the auction at the site, or, if the real estate was sold, a commission of 6 percent of the sale price.
On the date of the auction, October 25, 1977, the buyers inspected the property, signed an agreement to purchase the real estate for the price of $32,500, and paid the realtor a deposit of $3,250. The balance was due on receipt of a "good and merchantable deed." The legal description of the property, which was attached to the agreement, included the following provision:
"Subject to the rights of others in and to that portion used for roadway purposes, and including the right of ingress and egress, along with others, over, along, and across the present existing roadway from the above-described tract southwesterly to the public road along the Westerly line of said Northwest Quarter of the Southwest Quarter, and subject to easements of record."
Apart from the described roadway, there was no access from the purchased property to a public highway. Along with the legal description, the buyers were given an aerial plat of the property, which showed that the roadway passed through the property of others.
The buyers subsequently received a commitment for title insurance from the Chicago Title Insurance Company, and on November 17, 1977, their attorney sent a letter to the realtor, objecting to the condition of the title as shown by the commitment. Specifically, the buyers objected to three exceptions stated in the commitment: (1) any outstanding mechanic's liens; (2) no guarantee of ingress and egress to the property; and (3) any existing rights-of-way for drainage tile, ditches, feeders and laterals.
On November 16, 1977, the seller executed a warranty deed conveying the real estate to the buyers. The deed was given to the realtor, to be delivered to the buyers at closing, when buyers were to pay the balance of the purchase price. The legal description in the deed made no mention of the roadway described in the October 25 attachment.
On December 13, 1977, the seller's attorney forwarded a letter from Chicago Title Insurance Company to the attorney for the buyers, which waived the exception regarding ingress and egress to the property. The seller's attorney included his own letter, informing the buyers that seller would issue an affidavit that there were no outstanding mechanic's liens and would guarantee that the buyers would be held harmless from any unrecorded liens.
On December 30, 1977, the buyers made a demand for a return of their earnest money, $3,250. The demand indicated a continuing objection to the general exception relating to drainage laterals, and stated that "our client still has no report of the condition of title as to the roadway described in the attachment to the October 25th document."
On January 6, 1978, seller responded that the above objections did not render the title unmerchantable, and that she would retain the earnest money and resell the property. On January 31, 1978, seller filed a complaint naming the realtor as defendant on a breach of contract theory, and alleging that she was entitled to the earnest money paid to the realtor by the buyers.
Subsequently, the realtor filed a counterclaim for interpleader joining seller and buyers as counterdefendants. The counterclaim alleged that the realtor was claiming only its expenses and commissions, and asked for a judicial determination indicating to whom the remainder of the deposit money was to be paid.
The buyers subsequently filed a counterclaim against the seller and the realtor for a refund of the $3,250 earnest money, on the grounds that the seller had failed to tender merchantable title, and that the seller had failed to maintain ...