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08/18/88 Pearl H. Noe Et Al., v. Norma B. Sandholm Clemons

August 18, 1988





528 N.E.2d 257, 174 Ill. App. 3d 223, 123 Ill. Dec. 712 1988.IL.1269

Appeal from the Circuit Court of McLean County; the Hon. W. Charles Witte, Judge, presiding.


JUSTICE McCULLOUGH delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.


In this forcible entry and detainer action, the purchasers of real estate under a contract for warranty deed seek eviction of the seller, who peaceably entered the property with the permission of one of the purchasers. The circuit court entered a directed finding for defendant at the Conclusion of the plaintiffs' evidence. Because the uncontradicted evidence reflects no forfeiture of the purchasers' rights under the contract for warranty deed, we reverse the circuit court's directed finding. This action is of a strange posture, for the plaintiffs seek protection of the notice requirements of sections 9-104.1 and 9-110 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 9-104.1, 9-110), as well as a finding of no abandonment or forfeiture pursuant to a contract for the sale of real estate.

This litigation has its roots in a dissolution of marriage proceeding involving only the plaintiffs. The provisions of a supplemental judgment entered September 23, 1987, in cause No. 86 -- D -- 633, McLean County, Illinois, determined the property rights of the plaintiffs Pearl H. "Sue" Noe (Sue) and Lawrence L. Noe (Larry), following the dissolution of their marriage. The supplemental judgment adopted an August 25, 1987, opinion of the circuit court which noted that the parties purchased a home in Lexington from Larry's mother, defendant Norma B. Sandholm Clemons (Clemons), under an installment contract for warranty deed.

The contract for warranty deed, executed October 1, 1985, listed a purchase price of $40,000. Sue and Larry paid $5,000 cash to Clemons and transferred to her title to a 1977 Arlington mobile home, in exchange for a $15,000 credit on the purchase price of the Lexington residence. The remaining $20,000 was to be paid at the rate of $250 per month, with no interest being charged. Upon the buyers' default, the seller was empowered, inter alia :

"[To] treat this Agreement as at an end, to forfeit the contract, to retain all payments made, and to re-enter and to regain possession of said premises as if this Agreement had never been made, subject to the provisions of any forcible entry and detainer or other statute relating to the termination of this Agreement and relating to the respective rights of the parties."

At the time of the dissolution of the plaintiffs' marriage, the Lexington residence was worth $40,000, and approximately $15,000 remained due on the contract for its purchase.

In its August 25, 1987, opinion, the circuit court further found that since vacating the Lexington residence and returning possession of the same to Clemons, Larry had been living in the Arlington mobile home, title to which had been transferred to Clemons as a down payment on the Lexington residence. Subject to various allowances and credits which are not here relevant, the court ordered that the Lexington residence be sold, the contract for its purchase paid off, and the net proceeds divided equally between Sue and Larry. The court noted that since Larry had surrendered possession of the Lexington residence to Clemons, legal proceedings might be necessary to place the purchasers of the premises in possession thereof.

Larry and Sue were served with a document entitled "Notice of Intention to Declare Forfeiture of all Rights under Articles of Agreement for Warranty Deed and Notice of Intention to File Forcible Detainer Suit" on March 10, 1987, and March 12, 1987, respectively. This document provided in part:

"NOW, THEREFORE, Purchaser, you are hereby notified:

1. Unless all defaults under the Contract [for warranty deed pertaining to the Lexington residence] are cured on or before the 10th of April, 1987, that it is the intention of Seller to declare all your rights under the Contract to be forfeited, and all payments made by you will be retained by the Seller.

2. That it is the intention of Seller to institute proceedings to evict you from possession of the Property under an Act relating to Forcible Entry and Detainer, unless you remedy the aforesaid ...

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