Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Illini Fed. S. & L. Ass'n v. Elsah Hills Corp.

OPINION FILED JANUARY 26, 1983.

ILLINI FEDERAL SAVINGS & LOAN ASSOCIATION, PLAINTIFF-COUNTERDEFENDANT-APPELLANT AND CROSS-APPELLEE,

v.

ELSAH HILLS CORPORATION ET AL., DEFENDANTS. — (DAVID BAILEY ET AL., INTERVENING COUNTERPLAINTIFFS-APPELLEES AND CROSS-APPELLANTS.)



Appeal from the Circuit Court of Jersey County; the Hon. Howard Lee White, Judge, presiding.

JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT:

This declaratory judgment action was brought in the circuit court of Jersey County for construction of restrictive covenants affecting land use in a subdivision. The trial court granted in part and denied in part summary judgment for intervening counterplaintiffs, David Bailey et al. (Bailey), and against plaintiff, Illini Federal Savings & Loan Association (Illini). Judgment was entered on the court's finding. Illini appeals and Bailey cross-appeals. We affirm.

In 1963, Elsah Hills Corporation had legal title to approximately 60 acres and was purchasing on contract 200 acres less the previously acquired 60 acres, all in Jersey County, Illinois. On December 30, 1963, the corporation recorded a document entitled "Subdivision Restrictions" with the county recorder. During 1963 and over the next 14 years, the corporation sold lots within the 60-acre tract to over 60 title holders. On December 2, 1977, Illini acquired (by means not appearing of record) title to the 140-acre balance as well as several lots within the 60 acres. The 140 acres is in two noncontiguous parcels and was never assigned lot lines or numbers.

On June 5, 1979, a document was recorded which purported to make changes in the original subdivision restrictions as allowed by its procedures for amendment. On May 29, 1981, Illini filed this declaratory judgment action against Elsah Hills Corporation. Illini maintained that the subdivision's restrictive covenants prohibited amendments until December 31, 1983, 20 years after their initial recording.

The trial court granted leave to intervene to a group of lot owners led by David Bailey. On July 23, 1981, they filed a countercomplaint seeking a declaration that the 1979 amendments to the restrictive covenants went into effect immediately upon their recording and that covenants in the original restrictions applying only to "lots" were equally applicable to the two parcels making up Illini's unsubdivided 140 acres.

Defendants Elsah Hills et al. (Elsah Hills) moved for summary judgment against Illini on its complaint and said motion was denied. (Elsah Hills did not cross-appeal.) Bailey moved for summary judgment on his complaint. The court denied the motion as to the effective date of the amendments, but granted the motion regarding the scope of the original restrictions. Judgment was entered on that finding.

Paragraph 23 of the original "Subdivision Restrictions" provides:

"These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty (20) years, from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by a three-fourths (3/4) majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part."

Illini maintains that amendments can only be recorded after the lapse of the first 20-year period. Thus, its prayer for relief requests that the 1979 amendments be declared null and void and be expunged from the record of the Jersey County recorder's office. Bailey argues that the amendatory clause allows for amendments at any time and that they become effective immediately upon recording. We believe that neither interpretation follows the natural meaning of the language.

• 1 First, the interpretation by Illini is patently wrong. The provision clearly states that unless properly amended, the covenants will be automatically extended for 10 more years at the end of the 20-year period. The covenants are not amended until an instrument so doing is recorded. If no amendatory instrument was recorded prior to December 31, 1983, the original restrictions would have continued in effect for 10 more years. Using the same reasoning, a clause almost identical to the one here was also so construed in Failla v. Meaux (La. App. 1970), 237 So.2d 688. We conclude that it was appropriate to record amendments any time after the recording of the original restrictions.

Bailey maintains that amendments become effective immediately upon being recorded. In order for the paragraph in question to have this meaning, the last clause "unless an instrument signed by a three-fourths (3/4) majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part" must be found to modify the entire sentence rather than the immediately preceding clause, "after which time said covenants shall be automatically extended for successive periods of ten (10) years." Neither rules of construction nor logic countenance such a result.

• 2 According to the "last antecedent clause" rule of construction, a qualifying phrase is to be confined to the last antecedent unless there is something in the instrument requiring a different construction. (Zimmerman v. Willard (1885), 114 Ill. 364, 2 N.E. 70; Storybook Homes, Inc. v. Carlson (1974), 19 Ill. App.3d 579, 312 N.E.2d 27; Tondre v. Pontiac School District No. 105 (1975), 33 Ill. App.3d 838, 342 N.E.2d 290.) Not only is there nothing in the instrument requiring a different construction, if the restrictions can be amended at any time, the 20-year and successive 10-year time periods would be rendered meaningless. Meaning and effect must be given each part of an instrument and it is presumed that each provision served a purpose. (White v. White (1978), 62 Ill. App.3d 375, 378 N.E.2d 1255.) It may have been intended that the period in which no amendment may take effect would serve as a time of stability to allow for long-term planning on the part of the property owners without the fear of immediate changes in restrictions. In any event, the 20-year period is in the provision, and no reason has been advanced as to why it should be ignored. See White v. Lewis (1972), 253 Ark. 476, 487 S.W.2d 615; Robinson v. Morris (La. App. 1973), 272 So.2d 444.

• 3 The record contains an affidavit by Carol Beldon, an officer and director of Elsah Hills Corporation. Beldon, one of the drafters of the "Subdivision Restrictions," states that it was the intention of the drafters to permit amendments during the 20-year period. The affidavit is extrinsic evidence and may not be considered in order to contradict the clear meaning of the instrument. (Storybook.) Furthermore, the affidavit was apparently drafted by an attorney for purposes of this litigation and as such is self-serving and not particularly helpful in finding intent and purpose. Diamond Bar Development Corp. v. Superior Court (1976), 60 Cal.App.3d 330, 131 Cal.Rptr. 458.

The trial court made no specific finding on the effective date of the amendments, but only refused to grant summary judgment on the position taken by Bailey. We affirm, based on the conclusion that the amendments to the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.