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Rothert v. Rothert

OPINION FILED OCTOBER 20, 1982.

ROLLAND RAY ROTHERT, A/K/A ROLLAND R. ROTHERT, PLAINTIFF-COUNTERDEFENDANT-APPELLANT AND CROSS-APPELLEE,

v.

ROBERT HENRY ROTHERT, INDIV. AND AS ADM'R OF THE ESTATE OF EMMA E. ROTHERT, DECEASED, ET AL., DEFENDANTS-COUNTERPLAINTIFFS-APPELLEES AND CROSS-APPELLANTS. — (ROLLAND DOUGLAS ROTHERT ET AL., DEFENDANTS-APPELLEES.)



Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 12, 1982.

We deal here with owelty.

Owelty is "the amount paid or secured by one owner to another to equalize a partition of property in kind." Webster's Third New International Dictionary 1612 (1976).

BACKGROUND

This partition action involves two farms in Sangamon County. The farms are owned by two brothers and a sister: plaintiff, Rolland Rothert, and defendants, Robert Rothert and Kathryn Hill (previously Kathryn Rothert). The parties inherited the farms from their father, William Rothert, who died intestate in 1922. William's survivors were his wife, Emma Rothert, and his three children, Rolland, Robert, and Kathryn. Emma died in 1973 and son Robert acted as the administrator of her estate. Plaintiff Rolland has farmed the 160-acre farm in Chatham Township (the Auburn farm) for more than 30 years. Defendant Robert has farmed the 114-acre farm in Cartwright Township (the Pleasant Plains farm) for more than 30 years and has lived on the farm for substantially all of his life.

In 1978, plaintiff filed a complaint in chancery in case number 158-78 seeking partition of the Auburn farm and reimbursement for two-thirds of the costs of improvements made thereon. The major improvements were a new barn, four new grain bins, and a basement that was finished off as living quarters. Named as defendants in this case were Robert Rothert (individually and as administrator of the estate of Emma Rothert), Oda Rothert (Rolland's wife), Rolland Douglas Rothert (Rolland's son), and Kathryn Hill. Defendants Robert and Kathryn filed an answer and counterclaim seeking partition and other relief including an accounting of the farm operation over a period of years.

Also in 1978, Rolland filed a complaint in partition in case number 159-78, seeking partition of the Pleasant Plains farm. Robert, Kathryn, and Jean Rothert (Robert's wife) were named as defendants in this case. General Telephone Company of Illinois was also named as a defendant because of an alleged easement. Again, defendants Robert and Kathryn filed an answer and a counterclaim seeking partition. Robert also sought a lien for improvements he had made on the property and reimbursement from plaintiff for crop expenses.

The two cases were consolidated by court order and tried on September 17 and 18, 1980. A judgment of partition was entered on December 9, 1980, in the consolidated cases. It was adjudged that Rolland, Robert, and Kathryn each owned an undivided one-third interest in each of the farms. It was further adjudged that Rolland was entitled to the enhanced value of the south 80 acres of the Auburn farm for having constructed the basement home. Upon partition in kind, the court ordered that the basement home be included in the parcel assigned to Rolland without charging him for the enhanced value.

Pursuant to article XVII of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 17-101 et seq.) (Partition Act), three commissioners were appointed and ordered to partition the premises. The commissioners submitted a 48-page appraisal to the court with a letter stating that there could not be a reasonably equitable division of the farms using land only. However, in the letter, the commissioners recommended a division, based on the appraisal, using land and cash.

The recommendation was as follows:

Auburn Farm $608,000 Pleasant Plains Farm 319,648 ________ Total Value $927,648 1/3 Value $309,216

One would receive the Pleasant Plains farm $319,648 and pay the other two a total of -10,432 ________ $309,216

One would receive the improved 80 acres at Auburn lying south of the road and valued at $3,850 per acre $308,000 and receive payment of ...


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