Appeal from the Circuit Court of Franklin County; the Hon.
Donald E. Garrison, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 14, 1986.
Plaintiff Don Meeker commenced this action against defendant Tommy Payne based on Payne's conveyance of certain real property other than as allegedly agreed between those parties. Other defendants included Thomas Gray, Mr. Payne's grantee, and Ray Everett Odom and Vera Faye Odom, now Vera Faye DeMattei, grantees as to subsequent conveyances by Mr. Gray. Also named as defendants were the Federal Land Bank of St. Louis and the Farmers Home Administration of the United States Department of Agriculture. Mrs. DeMattei defaulted. After a bench trial, the circuit court of Franklin County ordered Mr. Odom to convey the real estate to Mr. Meeker and awarded damages in favor of Mr. Meeker and against Mr. Gray, Mr. Odom, and Mrs. DeMattei. On motion of Mrs. DeMattei, the court vacated the judgment against her. Mr. Gray appeals; Mr. Meeker cross-appeals. We vacate the judgment and remand.
This is the third appeal to this court arising out of the underlying transaction, Mr. Payne's lease of three 15,000-bushel grain bins owned by Mr. Meeker. Much of the fact background is undisputed. Mr. Payne became delinquent in his rental payments to Mr. Meeker, who obtained a judgment by confession on a rent payment clause in the rental contract. On Mr. Payne's motion the judgment was opened and Mr. Payne counterclaimed inter alia for improper installation of the grain bins. During trial Mr. Meeker and Mr. Payne agreed to settle the case, and each signed a written agreement providing that Mr. Payne would convey his 288-acre farm to Mr. Meeker for $65,000. The case was dismissed. Some days later, according to Mr. Meeker, he and his attorney met with Mr. Payne and Mr. Payne's attorney, Elmer Jenkins, in the latter's office; Mr. Jenkins asked to see the contract on the farm; Mr. Meeker handed it to Mr. Jenkins, who after reading it laid it in front of Mr. Payne; Mr. Payne tore the document into pieces and handed it to Mr. Jenkins, who dropped it in a wastebasket and said something like "this is over with and now we could get down to making a contract." Further negotiations produced no agreement between the parties. Mr. Meeker then prepared and filed of record an affidavit which set forth the written agreement and its destruction and stated Mr. Meeker's intention to file an action to enforce the agreement. In August of 1971, Mr. Payne contracted to sell the real estate to another party, who discovered the affidavit. On August 6, 1971, Mr. Payne commenced an action to have the affidavit and contract expunged from the record and his title quieted. Mr. Meeker counterclaimed for specific performance of the contract. After a bench trial, the circuit court of Franklin County found for Mr. Payne and dismissed Mr. Meeker's counterclaim. Mr. Meeker appealed. By opinion filed March 29, 1973, this court reversed and ordered that the circuit court render a decree for specific performance of the sale contract regarding the surface of the realty in favor of Mr. Meeker. Payne v. Meeker (1973), 10 Ill. App.3d 986, 295 N.E.2d 239.
While the above action was pending in the circuit court of Franklin County, Mr. Payne contracted to sell the real estate to Mr. Gray. On November 24, 1971, after the circuit court's judgment quieting Mr. Payne's title, Mr. Payne conveyed the surface of the real estate to Mr. Gray, who the same day conveyed 188 acres of the surface of the real estate to Mr. and Mrs. Odom, who in turn executed and recorded two mortgages, one in favor of the Federal Land Bank of St. Louis, the other in favor of the Farmers Home Administration. In 1974 Mr. Gray conveyed the other 100 acres to Mr. Odom. The marriage of Mr. and Mrs. Odom ended in divorce in 1974, and Mrs. Odom conveyed her interest in the 188 acres to Mr. Odom. Mrs. Odom later changed her name to DeMattei.
Mr. Meeker instituted the instant action on January 22, 1979, seeking equitable relief from Mr. Payne, Mr. Gray, Mr. Odom, Mrs. DeMattei and the two mortgagees. The circuit court of Franklin county dismissed Mr. Meeker's complaint with prejudice. This court reversed and remanded with directions to allow Mr. Meeker to amend his complaint and for further proceedings. (Meeker v. Payne (1981), 101 Ill. App.3d 723, 428 N.E.2d 614.) After a bench trial, the judgment of the trial court filed May 31, 1984, was as follows: Mr. Odom was ordered to convey the 288 acres to Mr. Meeker by warranty deed within 10 days; the mortgage in favor of the Federal Land Bank was declared null and void; judgment was entered in favor of Mr. Meeker and against Mr. Payne in the amount of $114,600; judgment was entered in favor of Mr. Meeker and against Mr. Gray in the sum of $19,600; judgment was entered in favor of Mr. Meeker and against Mr. Odom in the amount of $95,000; Mr. Gray and Mr. Payne were held jointly and severally liable for the judgment against Mr. Gray; Mr. Payne and Mr. Odom were held jointly and severally liable for the judgment against Mr. Odom; Mr. Odom and Mr. Payne each received credit for $64,900 against the judgments against them; judgment was entered in favor of Mr. Meeker and against Mrs. DeMattei in the sum of $95,000; and Mr. Meeker was granted immediate possession of the 288 acres.
A letter filed July 2, 1984, signed by the trial court and sent to Mr. Odom's attorney (Mr. Phillips) and Mr. Meeker's attorney, states:
"I am in receipt of Charlie Phillips' letter dated June 13, 1984. In response thereto, I am enclosing a copy of my computations used to reach the judgments entered. Let me confirm that in the event that Odum [sic] pays the sum of $30,100.00 due Meeker, then the judgment for Meeker and against Odum will be completely satisfied."
The attached sheet states:
"Odum 119,450 Fair rental value of real estate, plus interest -32,450 Interest on purchase price of $64,900.00 _______ 87,000 8,000 Fair rental value of grain bin _______ 95,000
Gray 19,600 Conversion of grain bins
Payne 87,000) 8,000) Judgment against Odom 19,600 Judgment against Gray _______ 114,600."
By motion filed June 29, 1984, Mrs. DeMattei, whose liability against Mr. Meeker was established by default, sought to vacate the default judgment against her and file her answer to Mr. Meeker's complaint. By order filed September 11, 1984, the trial court entered judgment for Mrs. DeMattei and against Mr. Meeker on Mr. Meeker's complaint.
We first consider Mr. Gray's appeal. Mr. Gray first contends that he is entitled to a new trial because he was deprived of the services of attorney ...