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Braden v. Weinert





APPEAL from the Circuit Court of Rock Island County; the Hon. DAVID DeDONCKER, Judge, presiding.


Defendants Steffen Weinert and Judith Weinert appeal from that portion of the judgment in this forcible entry and detainer action wherein the court ordered them to pay compound interest on certain unmade payments under a contract for sale of real estate. They also appeal from the court's imposition of restrictive covenants upon their property. The plaintiffs Richard and Patricia Braden filed a cross-appeal, arguing error in the court's denial of their prayer for immediate possession of the property, based upon the Weinerts' forfeiture.

The facts as found in the record of this small-claims action are largely undisputed. In 1966, Ruby Penny entered into a land contract with Jerry and Jane Brown, as joint tenants, for the sale of 120 acres of property. Subsequent thereto, the Browns, in June 1971, entered into a land contract with the Weinerts, whereby they sold, on a contract, a 5.21-acre parcel of land, designated Lot 5 in Brown's Subdivision, which property was part of the original 120 acres the Browns had purchased from Penny, on a contract. The Weinerts made payments on the contract to the Browns from the date of purchase until April 1975. Those payments were made to the Browns' account at the Bank of Viola. In April 1975 the Browns filed for bankruptcy. The land was disclaimed by the trustee in bankruptcy. The Browns, in April 1975, told the Weinerts to cease making their payments on the contract for sale of Lot 5 in Brown's Subdivision. Thereafter, in January 1976, with the permission of Ruby Penny, Richard and Patricia Braden acquired all of the Browns' interest in the 120 acres which had formed the basis for the contract for sale between Penny and the Browns.

As a result of uncertainty due to legal insufficiencies and complications arising from the Browns' handling of the property, the Bradens needed time to "straighten things out." Largely because of this, the Bradens, successors to the Browns, never informed the Weinerts to resume monthly payments to them under the contract for sale of their Lot 5. Neither did they ever demand payments on the contract. In the interim, the Weinerts continued to occupy and farm Lot 5. In addition, the parties entered into a share crop arrangement for farming of the Bradens' lands for the years 1976 and 1977. In the summer of 1977, according to Mr. Weinert's testimony, he asked Mr. Braden when things would be straightened out, to which Braden replied that it would be as soon as they finished surveying the other property and getting the legal work done. The Bradens desired to subdivide the land they were buying from Penny.

Then, in December 1978, without prior request or demand for payments on the contract with the Weinerts, the Bradens served on the Weinerts a 30-day notice, which informed them that they were in default on their contract with the Browns. The notice demanded payment of $22,899.66, which represented the entire balance due on the contract, in addition to the Weinerts' alleged share of the costs of removing liens from the property, in anticipation of the subdivision. In response to the notice, the Weinerts tendered to the Bradens a payment of $4,710.15, representing the payments which were due on the contract, but had not been made, from April 1975 to that time. The tender was refused by the Bradens as inadequate.

Thereafter the forcible entry and detainer action was instituted in the small claims division. The trial court found that the Bradens had acquired the interests of the Browns in the real estate, subject to Weinerts' contractual interests, as set forth in their contract for the sale of Lot 5 with the Browns. The court found that the Bradens had acquired their interests from the Browns, knowing that the Weinerts occupied a portion of the premises and knowing of the contractual relationship between the Weinerts and the Browns. The court also found that the Bradens did not direct the Weinerts to resume making payments on the contract. As to the alleged forfeiture, the court concluded that enforcement of the forfeiture would not be granted, because the Weinerts had not, under the factual circumstances in the record, evidenced their intent to abandon the property by their failure to make payments. The court, therefore, denied the prayer for possession, premised upon the condition that the Weinerts pay to the Bradens all sums due under their contract, including the interest on payments as they would have become due, from April 1975 to that date of judgment.

By subsequent order, the court also found that the Weinerts had agreed, by stipulation of counsel, to a change in the legal description of the subject real estate, changing the designation of the property from Lot 5 in Brown's Subdivision to Lot 20 in Timber Ridge Estates, the Bradens' subdivision. Pursuant to that stipulation, the court also ordered that the Weinerts take Lot 20, as a substitute, subject to the subdivision plat for Timber Ridge Estates and the restrictive covenants therein and on record. The court further ordered that the Weinerts were to pay the Bradens compound interest on the missed payments, from April 1975 to date of judgment.

The Weinerts appeal from the order insofar as it orders them to pay compound interest on the delayed payments and insofar as it orders them to take Lot 20 of Timber Ridge Estates subject to the subdivision plat and the restrictive covenants contained therein. The Bradens, by cross-appeal, appeal from the court's order denying them possession, based upon the Weinerts' alleged forfeiture.

• 1 We proceed initially to the issues raised by the cross-appeal. In arguing that the court erred in denying them possession, based upon a forfeiture, the Bradens assert that the forfeiture occurred due (1) to the Weinerts' breach of certain county zoning building restrictions and due (2) to their abandonment of the contract, as evidenced by the failure to make payments on the contract. As to the first ground, being alleged violations of the county zoning laws, while those allegations were made in the notice and the declaration of forfeiture, they were denied by the answer of the Weinerts to the Bradens' statement of facts. Furthermore, no evidence was offered at trial on the issue of the alleged violations, nor was the issue argued at trial. Neither was the issue raised in the Bradens' post-trial motion. Since the Bradens did not pursue this issue at trial as a basis for the forfeiture, it is waived and not properly before us on this appeal. People ex rel. Wilcox v. Equity Funding Insurance Co. (1975), 61 Ill.2d 303, 312-13, 335 N.E.2d 448.

As to nonpayment basis of the forfeiture, the rules were amply set forth by this court in Aden v. Alwardt (1979), 76 Ill. App.3d 54, 59-61, 394 N.E.2d 716:

"It is a long-established rule that where a forfeiture has been declared in the manner prescribed in the contract, a court will give effect to it. [Citations.] However, it is equally well established that courts> of equity abhor forfeitures and will enforce them only where the right to forfeiture is clearly and unequivocally shown and injustice will not result. [Citations.] Essentially what is required is a balancing of the equities involved in the case.

`The principal factors considered significant in granting relief from forfeitures appear to be: The prior acceptance of late payments and whether the buyer has been given a reasonable warning that the seller will insist on prompt payment in the future [citations]; the length of time involved in the delay and whether the default has been repeated [citation]; whether substantial payment has been made on the whole contract [citation]; whether the purchaser has substantially improved the property [citation]; and whether there has been a mere delay rather than a suspension of the payments [citations].' [Citation.]

Also significant is whether the purchaser's failure to meet the contract's requirements was wilful and, most importantly, whether the seller will receive the full benefit of her bargain if specific performance is granted. [Citations.]

`When, in effect, the seller has not been deprived of the general object of the sales agreement, equity has considered time of performance to be a mere formal defect which may be corrected by payment of the ...

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