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Joseph v. Joseph

October 08, 1999

DAVID JOSEPH AND SHARYN JOSEPH, PLAINTIFFS-APPELLEES,
V.
MAURICE JOSEPH, NORMA JOSEPH, AND RICHARD JOSEPH, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court for the 10th Judicial Circuit Tazewell County, Illinois No. 95--CH--53 Honorable John A. Barra, Judge Presiding

The opinion of the court was delivered by: Justice Homer

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

JUSTICE HOMER delivered the opinion of the court:

Plaintiffs brought this action to compel the partition of 6.59 acres of unimproved real estate in Tazewell County pursuant to section 17--101 of the Code of Civil Procedure (the Code) (735 ILCS 5/17--101 et seq. (West 1994)). At the Conclusion of the proceedings, the trial court ordered the property sold at a public sale. Defendants appeal contending that the land should have been divided and distributed rather than sold.

FACTS

In 1978, the parties purchased 6.59 acres of unimproved real estate in Tazewell County along the Illinois River. Title to the real estate was taken by "David Joseph, not personally, but as Trustee under The Joseph Family Land Trust/Partnership Agreement dated May 2, 1977." Plaintiffs asked the court to determine the respective interests of the parties and to divide the property accordingly or order a sale.

The trial Judge found that no written trust agreement for the Joseph Trust existed, but that an implied trust existed for the benefit of David Joseph and his wife Sharyn, Maurice Joseph and his wife Norma, each having a one-fourth interest in the property. Pursuant to section 17--106 of the Code, the Judge appointed three commissioners to make partition of the property. The commissioners filed a report signed by two of them concluding that the property was not susceptible to division without manifest prejudice to the rights of the parties. The third commissioner filed a report finding that the property was susceptible to equitable division in kind without manifest prejudice if owelty was paid.

Maurice and Norma filed objections to the majority report and a hearing was held. Commissioner Klopfenstein testified that the property could not be divided without manifest prejudice to the parties because parts of the property would have superior river views. He stated that the highest value of the property would be as a single site. Commissioner Finch testified that the property could not be divided without manifest prejudice to one or more of the parties because the views, access, and topography vary on the site. He also stated that the property would be most valuable as a single site. Commissioner Fortune testified that the property could be divided and equity achieved through the payment of owelty. He thought the property would be more valuable divided into two, three, or four lots rather than maintained as a single site. Another appraiser, called as a witness by defendants, also testified that the property could be divided without manifest prejudice to the parties if owelty was paid to equalize the values.

The court denied defendants' objections finding that the majority report of the commissioners was "not contrary to the manifest weight of the evidence" and ordered the property sold at auction.

Defendants appeal arguing that the court gave the majority commissioners too much deference. We agree and reverse. Because we reverse on this issue, we need not address the remaining issues raised by defendants. Additionally, plaintiffs argue that the appeal is moot. We disagree.

ANALYSIS

Initially, we note plaintiffs' contention that this appeal is moot under Supreme Court Rule 305(j) (155 Ill. 2d R. 305(j)) which states:

"[i]f a stay is not perfected within the time for filing a notice of appeal, *** the reversal or modification of the judgment does not affect the right, title, or interest of any person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed;"

The order from which this appeal is taken was entered November 23, 1998. On the same day, the trial Judge signed a deed conveying the property to plaintiffs, the successful bidders at auction, and plaintiffs quitclaimed the property to GHSC Associates Ltd. Partnership (GHSC Associates). On November 25, defendants filed a notice of appeal and a motion for a stay pending appeal. However, the trial court did not enter the stay until December 31. Plaintiffs contend that reversal of the instant judgment would not affect the rights of GHSC ...


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