APPEAL from the Circuit Court of Will County; the Hon. JOHN
VERKLAN, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 1, 1982.
The instant appeal evolves from an eminent domain proceeding. In 1973, the Department of Transportation of the State of Illinois filed a petition to condemn 7.55 acres of land owned by New Century Engineering and Development Corporation and subject to a mortgage held by James Talcott, Inc. The State desired immediate acquisition of the property. Rather than awaiting a jury determination of land valuation, the State pursued a quick-take procedure, moving for immediate vesting pursuant to section 2.1 of the Illinois Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 2.1). The trial judge found that the State had authority to exercise the right of eminent domain, despite defendant's objection, and made a preliminary finding which assessed just compensation for the property at $325,000. The State made a deposit of the required amount and took possession of the property. In a joint petition for withdrawal of funds, New Century was permitted to withdraw $137,500 and mortgagee Talcott was permitted to withdraw $187,500.
Eight years later, the condemnation action was finally tried before a jury; a value of $171,535 was ascribed to the property. That amount was a full $153,465 short of the preliminary valuation of $325,000. On application to the court, defendants New Century and Talcott were held jointly and severally liable for $137,500 and defendant Talcott solely liable for the additional amount of the excess withdrawn, $15,965. The State's request for interest on the refund was denied.
Defendant Talcott appeals that, as a mortgagee, it should not be required to make any refund, but if any, its refund should be limited to $15,965. The State appeals the denial of their request for interest.
• 1 Our initial inquiry is whether there is joint and several liability between interested parties for refund of the total amount by which the preliminary finding of just compensation exceeded the final jury determination, regardless of the portion each party withdrew from the preliminary award. Stated another way, where an owner and mortgagee lawfully withdraw for their own use different amounts from the State's preliminary fund for compensation, does the law require that each party be a guarantor for the amount withdrawn by the other if a refund is later required?
Two provisions of the Illinois Eminent Domain Act are applicable to our inquiry.
Section 2.4 provides in part:
"[A]ny party interested in the property may apply to the court for authority to withdraw for his own use his share (or any part thereof) of the amount preliminary found by the court to be just compensation, and deposited by the petitioner * * *. * * * the court may authorize the withdrawal requested, or such part thereof as shall be proper, but upon the condition that the party making such withdrawal shall refund * * * any portion of the amount so withdrawn which shall exceed the amount finally ascertained in the proceeding to be just compensation * * * owing to such party." Ill. Rev. Stat. 1971, ch. 47, par. 2.4.
"If the amount withdrawn from deposit by any interested party under the provision of Section 2.4 of this Act exceeds the amount finally adjudged to be just compensation (or damages, costs, expenses, and attorney fees) due to such party, the court shall order such party to refund such excess to the clerk of the court, and if refund is not made within a reasonable time fixed by the court, shall enter judgment for such excess in favor of the petitioner and against such party." Ill. Rev. Stat. 1971, ch. 47, par. 2.7.
We do not believe that the law imposes the relationship of guarantor on parties in this situation. The interest of each is separate and distinct. The relationship of guarantor arises from an agreement between two parties with consideration forming the basis for the added liability assumed by the guarantor. New Century and Talcott never entered such an agreement. Merely by filing a joint petition for withdrawal of funds, separate amounts in their separate names, we do not believe that each party assumed liability for the withdrawal of the other. The statute does not impose such liability. This court will not now impose it.
The State elected to proceed under the quick-take provisions of the Eminent Domain Act. The State did not oppose the withdrawal of separate funds by the owner New Century and by the mortgagee Talcott. The record reveals that the petition clearly designated the interest each party had in the condemned land; separate withdrawals were sought by each. Of the $325,000 available for withdrawal, New Century sought and received $137,500. Although within the same document, Talcott separately sought and received $187,500.
In referring to entitlement to the condemnation proceeds, the statute uses the term "interested party" rather than "owner." Thus, it is evident that the drafters contemplated that multiple persons could apply for withdrawal. Section 2.4, as quoted above, provides that a condition of each party's withdrawal is that "the party making such withdrawal shall refund * * * any portion of the amount so withdrawn which shall exceed the amount finally ascertained * * * to be just compensation * * * owing to such party." All parties concede that Talcott, as mortgagee, is entitled to priority over New Century with respect to the entire condemnation proceeds. (City of Chicago v. Salinger (1943), 384 Ill. 515.) Talcott was entitled to retain the full $171,535 awarded by the jury. Talcott withdrew only $187,500. Thus, Talcott must refund any portion of the ...