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12/04/87 David R. Bledsoe Et Al., v. Pauline Carpenter

December 4, 1987

DAVID R. BLEDSOE ET AL., PLAINTIFFS-APPELLANTS

v.

PAULINE CARPENTER, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

516 N.E.2d 1013, 163 Ill. App. 3d 823, 114 Ill. Dec. 858 1987.IL.1791

Appeal from the Circuit Court of Rock Island County; the Hon. Susan B. Gende, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

The plaintiffs, David and Sandra Bledsoe, appeal from the judgment of the circuit court of Rock Island County which, after a bench trial, entered judgment in favor of the defendant, Pauline Carpenter, and refused to grant rescission of a real estate installment contract. The Bledsoes contend that the contract failed to comply with the requirements of section 2 of "An Act relating to installment contracts to sell dwelling structures" (Ill. Rev. Stat. 1985, ch. 29, par. 8.22) (the Act). Carpenter contends that the contract does satisfy the statutory requirements or that, in the alternative, the Bledsoes are guilty of laches and that the action is barred.

The Bledsoes and Ronald L. Carpenter executed a real estate installment contract on December 10, 1980, for the sale of an eight-unit apartment building. Subsequently, Ronald Carpenter assigned his interest in the contract to his mother, the defendant, Pauline Carpenter. The contract, which contained a selling price of $205,460 for the building, provided for monthly payments of $2,174.49. The Bledsoes have received all rental income from the property from the date the contract was executed. Sometime after the Bledsoes purchased the property, certain violations were allegedly noted by a government official. In May 1984, the Bledsoes inquired as to a possible sale of the premises but were informed that the value of the property was less than the original purchase price.

In July 1985, Carpenter filed suit to obtain specific performance on the contract, alleging that the Bledsoes were 20 months delinquent in their payments on the contract. No question was raised as to the application of the statute in that action. The trial court, in that case, entered an order in February 1986 ordering the Bledsoes to specifically perform the contract. No appeal was taken in that case. Three months after the ruling in that case, the Bledsoes filed the present case seeking rescission of the contract on the ground that it did not comply with the statutory requirements. The trial court entered judgment in Carpenter's favor and the Bledsoes appeal.

The main issue in this case arises from the language contained in the statute and paragraph 14 of the installment contract, which purports to satisfy the statutory requirements. Section 2 of "An Act relating to installment contracts to sell dwelling structures" states:

"After the effective date of this Act, any installment contract for the sale of a dwelling structure shall be voidable at the election of the buyer unless there is attached to the contract or incorporated therein a certificate of compliance, or in the absence of such certificate (i) an express written warranty that no notice from any city, village or other governmental authority of a dwelling Code violation which existed in the dwelling structure before the installment contract was executed had been received by the contract seller, his principal or his agent within 10 years of the date of execution of the installment contract, or, (ii) if any such notice of violation had been received, a list of all such notices so received with a detailed statement of all violations referred to in such notice. The requirements of this section can not be waived by the buyer or seller." (Ill. Rev. Stat. 1985, ch. 29, par. 8.22.)

The paragraph of the articles of agreement for warranty deed which purports to comply with the statute reads as follows:

"14. Seller's Warranty. The seller, as owner of the premises, warrants that no notice has been issued and received by the seller or seller's agent from any city, village or other governmental authority of a dwelling code violation, which presently exists in any dwelling structure on the premises covered by this contract."

An examination of the passage of time since the execution of the contract, the actions of the parties, and the wording of the seller's warranty when compared with the statute lead us to the Conclusion that the trial court was correct in its determination. We affirm for the following reasons.

Initially, we find that the plaintiff is guilty of laches. For laches to bar a suit, the delay must be such that, taken with other circumstances, it has caused prejudice to the defendant. (Baumrucker v. Brink (1939), 373 Ill. 82, 25 N.E.2d 51.) However, the question of laches does not turn merely on the passage of time but depends on whether the plaintiff is chargeable with want of due diligence. When this want to due diligence is coupled with the fact that there is a change in parties or subject matter so as to render it inequitable to grant relief, relief will be refused without reference to a statutory ...


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