Appeal from the Circuit Court of La Salle County; the Hon.
Alexander T. Bower, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 18, 1986.
The matter before us concerns a dispute over the sale by auction of defendants' farm. The notice of public auction advertising the sale described the real estate as:
"Choice farmland * * * consisting of 129 acres more or less * * *.
The South Half of the Northwest Quarter of Section 10 and the North 70 Acres of the Southwest Quarter of said Section 10, all in Township 34 North, Range 2 Third Principal Meridian, excepting however, the South 26-2/3 rods of the East 120 rods of the North 70 Acres of the Southwest Quarter of said Section 10 and excepting the North 230 feet of the West 190 feet of the South Half of the Northwest Quarter of Section 10, consisting in all 129 acres, more or less, in La Salle County, Illinois."
Among the terms of sale listed in the announcement which are relevant to this action were: "2. Bids to be submitted on a per acre basis. * * * 8. Survey will not be provided. [and] 9. Possession to be delivered on date of closing." On the date of the auction, October 29, 1983, plaintiffs' high bid of $2610 per acre was accepted. An agreement for warranty deed was executed by the parties accordingly. The agreement set forth the computation of the sale price as "$2610.00 per acres x 129 acres = $336,690.00."
Prior to the December 3, 1983, closing, plaintiffs questioned the acreage and demanded that the purchase price be corrected to reflect a deficiency. It does not appear that the amount of such deficiency was known by either party at this point. In any event, the defendants refused the demand but ordered a survey to be conducted. The sale was closed as scheduled. The warranty deed delivered on December 3, 1983, described the property in question as:
"The South Half of the Northwest Quarter of Section 10 and the North 70 acres of the Southwest Quarter of said Section 10, all in Township 34 North, Range 2, East of the Third Principal Meridian, EXCEPTING however, the South 26-2/3rds rods of the East 120 rods of the North 70 acres of the Southwest Quarter of said Section 10, and EXCEPTING the North 230 feet of the West 190 feet of the South Half of the Northwest Quarter of said Section 10, subject to any and all easements and restrictions of record, all being situated in the County of La Salle, in the State of Illinois, containing 129 acres, more or less."
On December 29, 1983, the survey ordered by defendants was completed. The survey established that, in fact, there were only 127.143 acres within the legally described boundaries of the farm, and that uneven fence lines over the years and a deed overlap resulted in a further deficiency of about four acres in the total area of the farm conveyed.
On April 5, 1984, plaintiffs filed a complaint in the circuit court of La Salle County praying for damages for the deficiency in acreage conveyed. Defendants answered. Thereafter, both parties moved for summary judgment. At the hearing on the motions, the parties agreed that the sole issue was whether the sale of the farm was "in gross" or "by the acre." On June 20, 1985, the court found that "the actual number of acres delivered in the possession of the plaintiffs was 122.97, that there is no question of fraud or fraudulent misrepresentation, [and] that the sale * * * was a sale in gross and not a sale by the acre." The court, therefore, concluded that "plaintiffs, in the absence of fraud, do not have a cause of action for the deficiency in the number of acres conveyed by the defendants." Judgment in favor of defendants was granted.
In this appeal plaintiffs again raise a single issue whether the sale of defendants' farmland was "in gross" or "by the acre."
The general rule of law controlling here is not disputed. Where the sale is "in gross" for a lump sum regardless of the acreage the vendor is not liable for any deficiency in the acreage except for fraud. (Rotermund v. Lauritzen (1922), 225 Ill. App. 170.) By contrast, where the sale is "by the acre," the vendor will be held liable for such deficiency. Wadhams v. Swan (1884), 109 Ill. 46.
• 1-3 Contracts for sales of land in gross have been described as contracts of hazard and are not favored in the law. Where a farm is sold and described as containing any certain number of acres, a presumption arises that the sale is "by the acre" and not "in gross." This presumption is not lightly overcome and may be rebutted only upon clear and convincing proof that the parties intended it to be a sale "in gross." Where proof of the parties' intention is unclear or ambiguous, "the courts, not favoring contracts of hazard, will always construe the same to be contracts of sale per acre." (Huffman v. Landes (1934), 163 Va. 652, 659, 177 S.E. 200, 203.) Finally, where the number of acres is considered material by the parties, in that it affects the consideration agreed upon, a misrepresentation or mutual mistake of fact as to the acreage entitles the purchaser to a judicial remedy even though the sale was not technically "by the acre." Paine v. Upton (1882), 87 N.Y. 327.
• 4 We agree with the plaintiff that the trial court erred in its conclusion that the sale here was "in gross." Clearly, there were certain aspects of the sale that are characteristic of sales "in gross" i.e., the farm was offered as a single, undivided parcel, rather than separate tracts; a survey was not to be provided; and the caveat "more or less" appears to place the risk of an acreage discrepancy on the purchaser. Nonetheless, we do not find these aspects sufficiently probative of the parties' intent to overcome the presumption that the sale in this case was "by the acre." The number of acres 129, more or less was clearly set forth in the defendants' notice of sale by public auction. Bidding was invited and cast on a per-acre basis. Thus, the full sale price of $336,690 was never bid as such, but was later determined by multiplying 129 acres times the plaintiffs' high bid of $2610 ...