author: JUSTICE REINHARD

text:
    KEVIN J. SULLIVAN, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF LISLE, Defendant-Appellee.
    Second District
    No. 81-277
    Opinion filed December 28, 1981.

      Stanley H. Jakala, of Berwyn, for appellant.
    Walter P. Maksym, Jr., of Wheaton, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Kevin J. Sullivan, appeals from an order of the circuit court of Du Page County dismissing with prejudice his complaint for declaratory judgment against defendant, the Board of Fire and Police Commissioners of the Village of Lisle, Illinois (board), who discharged him from his position as a probationary police officer in the Village of Lisle. After his discharge, plaintiff commenced this action which sought a declaration that his discharge was the result of a second psychological examination which, contrary to the requirements of the relevant provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—6), was not practical in character and did not fairly test plaintiff in his ability to discharge his duties as a police officer. Plaintiff alleged in his complaint that the effect of this statute was to give him a vested property right to an examination of such a nature, and that the second psychological examination be held for naught and he be reinstated to the rank of patrolman. The trial court found he had no vested right and granted defendant’s motion to dismiss. Appeal to this court followed.

The factual allegations in the complaint state the following: plaintiff was hired by the board as a probationary police officer on August 15, 1979; prior to this hiring, plaintiff was subjected to a written examination, a physical examination, a psychological examination, a polygraph examination, an oral interview and a background examination; and scored the second highest grade on the written examination. He further alleged the following: he attended and successfully completed a Police Training Institute course conducted by the University of Illinois; he prepared a report of the course for the police chief and was praised; he was appointed to organize a police department library; he prepared a retail theft slide program; he had the best police improvement activity record for the period ending July 1980, with nine felony arrests out of a total of 22 made in the Lisle Police Department, and 66 misdemeanor arrests out of a total of 202; and he was recommended by the police chief to the board for appointment as a permanent police officer for the village at the termination of his probationary period. The complaint further states that he was requested to and did take a second psychological examination which was the same as the first; that on August 11, 1980, he was informed by the board that because he had not met all the standards set by the board, his employment with the village was terminated as of that date; and that he was informed that the second psychological examination determined his termination. He also alleged that this examination was not practical in character and did not fairly test the plaintiff in terms of his ability to discharge his duties as a police officer in contravention of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—6).

Plaintiff’s complaint is based on the theory that an applicant for a position in a police department has a vested property interest under section 10—2.1—6 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—6) in examinations which are “practical in character and relate to those matters which will fairly test the capacity of the persons examined to discharge the duties of the positions to which they seek appointment.” Although a probationary policeman may have no vested property interest in future employment as a regular police officer, plaintiff maintains that he does possess a vested property interest in examinations of the character provided for by statute, which interest may not be infringed upon summarily. Plaintiff further maintains that the psychological retest did not practically and fairly examine his capacity to serve as a police officer, and that his performance during his probationary period negated the results of the second examination. He therefore contends that the second examination infringed upon a protected property interest in violation of the due process clause of the Fourteenth Amendment of the United States Constitution.

The board contends that plaintiff failed to file his complaint within the 35 days prescribed by the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 267), and it was required to be dismissed by the trial court for want of jurisdiction. The board also argues that as a probationary police officer, plaintiff could be summarily dismissed without a hearing, and enjoys no vested property right in his employment.

Initially, we address the issue raised by the board that the complaint for declaratory judgment should have been dismissed by the trial court for want of jurisdiction since it was not filed within 35 days of the date of the decision terminating him, as required under section 4 of the Administrative Review Act. (Ill. Rev. Stat. 1979, ch. 110, par. 267.) It has been held that a police and fire board is authorized by statute (Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—15) to provide for summary discharge of probationary police officers. (Romanik v. Board of Fire & Police Commissioners (1975), 61 Ill. 2d 422, 338 N.E.2d 397; Doyle v. Board of Fire & Police Commissioners (1977), 48 Ill. App. 3d 449, 363 N.E.2d 79, cert. denied (1978), 435 U.S. 970, 56 L. Ed. 2d 61, 98 S. Ct. 1609, rehearing denied (1978), 436 U.S. 941, 56 L. Ed. 2d 781, 98 S. Ct. 2839.) That section, unlike section 10—2.1—17 of the Municipal Code (relating to removal or discharge of officers or members of fire and police departments pursuant to “final administrative decisions of the board * * 8 hereunder”), makes no specific provision for application of the Administrative Review Act. It is well settled that the Administrative Review Act is applicable in only those instances where it has been adopted by express reference by the act creating or conferring jurisdiction upon the administrative agency involved. (Wilkins v. Department of Public Aid (1972), 51 Ill. 2d 88, 90, 280 N.E.2d 706; Dorr-Wood, Ltd. v. Department of Public Health (1981), 99 Ill. App. 3d 170, 174, 425 N.E.2d 499.) Also, this court has previously held that the Administrative Review Act is unavailable concerning promotional examinations given by a municipality pursuant to sections 10—2.1—10 through 10—2.1—15 of the Municipal Code. (Foster v. Board of Fire & Police Commissioners (1980), 81 Ill. App. 3d 48, 400 N.E.2d 1089.) The Administrative Review Act being inapplicable to a claim brought under section 10—2.1—15 of the Municipal Code, plaintiff’s complaint for declaratory judgment was timely filed.

Having found that the procedures under the Administrative Review Act are inapplicable to the case at bar, we turn now to the main issue on appeal: whether plaintiff has a vested property right in examinations which are “practical in character and relate to those matters which will fairly test the capacity of the persons examined to discharge the duties” of a police officer. (Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—6.) The pertinent statutory provision provides, inter alia, as follows:

“All applicants for a position in either the fire or police department municipality shall be * * * subject to an examination which shall be public, competitive, and free to all applicants, unless the council or board of trustees by ordinance limit applicants to electors of the municipality, county, state or nation, and shall be subject to reasonable limitations as to residence, health, habits and moral character. * * * The examinations shall be practical in character and relate to those matters which will fairly test the capacity of the persons examined to discharge the duties of the positions to which they seek appointment. * * * The examinations shall include tests of physical qualifications and health. * * * The examinations shall be conducted by the board of fire and police commissioners of the municipality as hereinafter provided. 0 * *” Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—6.)

It has been established that the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property must be attended by the requirements of procedural due process. (Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701.) “The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” (408 U.S. 564, 576, 33 L. Ed. 2d 548, 560, 92 S. Ct. 2708.) To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have a legitimate claim of entitlement to it. (408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709.) Property interests are not created by the Constitution, but instead “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure cértain benefits and that support claims of entitlement to those benefits.” (408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709; Perry v. Sindermann (1972), 408 U.S. 593, 601, 33 L. Ed. 2d 570, 580, 92 S. Ct. 2694, 2699.) “A property interest in employment can * * * be created by ordinance, or by an implied contract.” (Bishop v. Wood (1976), 426 U.S. 341, 344, 48 L. Ed. 2d 684, 690, 96 S. Ct. 2074, 2077.) The sufficiency of the claim of entitlement to the property interest must be decided by reference to State law. 426 U.S. 341, 344, 48 L. Ed. 2d 684, 690, 96 S. Ct. 2074, 2077.

Plaintiff cites no specific authority for the proposition that a property interest may be found to exist in examinations of a particular character with respect to probationary public employment. Plaintiff relies solely upon the fact that section 10—2.1—6 (Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—6) provides for all applicants to be subject to competitive examinations which “shall be practical in character and relate to those matters which will fairly test the capacity of the persons examined to discharge the duties of the positions to which they seek appointment.” It is clearly the law in Illinois that a probationary police officer has no vested-property right in “regular” employment and a board may adopt a rule providing for summary discharge of probationary police officers. (Romanik v. Board of Fire & Police Commissioners (1975), 61 Ill. 2d 422, 338 N.E.2d 397; Doyle v. Board of Fire & Police Commissioners (1977), 48 Ill. App. 3d 449, 363 N.E.2d 79.) Nothing in the express language of the statute (Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—6) purports to give a probationary police officer a vested property right in a particular type of examination. Rather, we believe the statutory language that “examinations shall be practical in character and relate to those matters which, will fairly test the capacity of the persons examined to discharge the duties of the positions to which they seek appointment” is a procedural requirement imposed upon police and fire boards in their testing of applicants. In this respect, an applicant, such as plaintiff, does not have a vested property right but merely has the standing to assert in an appropriate case that the procedure created by statute has not been followed by the board.

In the case at bar, the plaintiff’s contention in his complaint that the statute has not been followed is alleged as follows:

“12. That, prior to the receipt of the notice of termination, the plaintiff had been subjected to a second psychological test, exactly the same test he had taken prior to his acceptance as a probationary police officer by the Lisle Police Department under the auspices of the Government Personnel Consultants.
13. That subsequently, the plaintiff was informed that the second psychological examination determined his termination. « tf «
15. That the plaintiff was subjected to a second psychological examination which was not practical in character and did not fairly test the plaintiff in terms of his ability to discharge his duties as a police officer.
16. That the second psychological test violated the plaintiff’s constitutional rights of a vested property interest as protected by the Fourteenth amendment of the United States Constitution and that the second examination thereby should be held for naught.”

We are of the opinion that such allegations are conclusionary and unsupported by. specific facts and, therefore, are not sufficient to state a cause of action.

Although pleadings are to be liberally construed (Ill. Rev. Stat. 1979, ch. 110, par. 33(3)), and a defendant’s motion to dismiss admits all facts well pleaded (Kendall v. Kendall (1978), 71 Ill. 2d 374, 375, 375 N.E.2d 1280), nonetheless, in considering a motion to dismiss, the pleadings are to be construed strictly against the pleader. (Carroll v. Caldwell (1957), 12 Ill. 2d 487, 493, 147 N.E.2d 69; Gagne v. Village of LaGrange (1976), 36 Ill. App. 3d 864, 345 N.E.2d 108.) Notice pleading is not sufficient under our Civil Practice Act. (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 8, 373 N.E.2d 1326.) As most recently stated by our supreme court in Knox College v. Celotex Corporation (1981), 88 Ill. 2d 407, 426:

“If a motion to dismiss admits only facts well pleaded and not conclusions, then, in considering the motion if after deleting the conclusions that are pleaded there are not sufficient allegations of fact which state a cause of action against the defendant, the motion must be granted regardless of how many conclusions the count may contain and regardless of whether or not they inform the defendant in a general way of the nature of the claim against him.”

Testing plaintiff’s complaint in this light, there simply are no specific allegations of the way in which the second psychological examination administered to plaintiff was not practical in character and relate to those matters which will fairly test the capacity of the persons examined. Plaintiff has argued in this court that he would stand on his pleadings as stating a cause of action. We conclude that considering the plaintiff’s entire complaint, and particularly the pertinent paragraphs referred to above, the plaintiff has not pleaded specific facts sufficient to state a cause of action in order to withstand a motion to dismiss. (See Knox College v. Celotex Corporation (1981), 88 Ill. 2d 407, 426.) Although the trial court appeared to dismiss plaintiff’s complaint solely on the basis that he had no vested right, we may sustain the trial court’s ruling on any ground justified in the record on a motion to dismiss which is based entirely on a question of law. Shufelt v. City of Rockford (1980), 89 Ill. App. 3d 717, 719, 412 N.E.2d 4.

For the foregoing reasons, the judgment of the circuit court of DuPage County is affirmed.

Affirmed.

SEIDENFELD, P. J., and UNVERZAGT, J„ concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    FRED WACHTA et al., Plaintiffs-Appellees, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF WAUKEGAN, Defendant-Appellant.
    Second District
    No. 81-130
    Opinion filed December 31, 1981.
    Thomas W. Diver and Robert M. Bollman, both of Diver, Bollman, Grach and Quade, of Waukegan, for appellant.
    John L. Swartz, of Giffin, Winning, Lindner, Newkirk, Cohen and Bodewes, of Springfield, for amicus curiae Illinois Savings & Loan League.
    Richard J. Biondi and Shelby Yastrow, both of Wasneski, Kuseski, Flanigan and Dixon, of Waukegan, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, First Federal Savings and Loan Association of Waukegan, appeals from a judgment declaring that a proposed assignment by plaintiffs of their beneficial interest in a land trust would not be a conveyance of title which would entitle the lending institution to accelerate the due date of the entire indebtedness of the mortgage loan it made to plaintiffs.

Plaintiffs, Fred Wachta, Harold E. Brown, John Fritsch and Shelby Yastrow, owned certain property, and, on January 20, 1977, they entered into an agreement with the Bank of Waukegan whereby the property would thereafter be held in a land trust with the bank as legal and equitable title holder of the property and plaintiffs as owners of the beneficial interest in the land trust. In April 1977, plaintiffs made application to defendant for a $350,000 loan to finance construction of an apartment building. The loan commitment drawn by defendant stated that the loan would be made provided plaintiffs waived their right to have a redemption clause inserted in the mortgage; the property securing the loan would be held in trust; and plaintiffs executed an assignment of their beneficial interest in the land trust to defendant. A promissory note was signed in the amount of $350,000, and it was secured by a mortgage on the property executed at the direction of plaintiffs by the Bank of Waukegan. Plaintiffs later also signed a collateral assignment security agreement prepared by defendant as was required by the loan commitment.

Plaintiffs brought this action in the circuit court of Lake County seeking a declaratory judgment and injunctive relief. Plaintiffs alleged that they wished to assign their beneficial interest in the land trust to a third party and that defendant had informed plaintiffs that if such assignment was executed it would exercise its option to accelerate the balance due on the note and require immediate, full payment thereon. Plaintiffs sought a declaration that the proposed assignment was not within the scope of the clause in the mortgage, which provided:

“[A]t the option of the holders of the note 9 ° * all unpaid indebtedness secured by this mortgage shall * * * become due and payable immediately, upon conveyance by the Mortgagor of title, or execution by the Mortgagor of agreement to convey title, to all or any portion of the premises.”

Plaintiffs further prayed that defendant be enjoined from declaring the balance due on the note immediately payable.

Defendant denied the material allegations of plaintiffs’ complaint and interposed as an affirmative defense the pertinent provisions of the collateral assignment executed by plaintiffs, which provided:

“[The assignors] to secure their indebtedness * * * and in consideration of the extension of credit ° * * assign to LENDER all of their right, title and beneficial interest in and to [the land trust created January 20, 1977] subject to the following terms and conditions: * « *
2. Unless otherwise indicated * * * the sole power of direction under the trust shall be held by the LENDER 9 9 9.
3. Except as otherwise provided in this assignment, ASSIGNORS shall have retained their right to manage the trust property and the right to retain the rents from that property. * « «
5. The occurrence of any one of the following shall constitute an event of default * * * (e) the ASSIGNORS’ failing to perform or observe any covenant, warranty or agreement herein * * 0 (g) the LENDER feeling insecure for any reason whatsoever.”

Defendant maintained the proposed assignment would violate this collateral agreement because it had been granted the sole power of direction over the trust and once plaintiffs , executed this document they owned nothing which was capable of being assigned to a third party.

Following a hearing the trial court entered judgment declaring that the assignment as proposed by plaintiffs would not be a conveyance of title within the contemplation of the due-on-conveyance clause in the mortgage. Plaintiffs’ request for injunctive relief was denied on grounds that plaintiffs had not, as yet, provided defendant with sufficient documentation of the financial status of the proposed assignee and defendant had a right to receive such information. The trial court found there was no reason to delay enforcement or appeal of its order, and defendant thereafter filed its timely notice of appeal. No cross-appeal has been brought from that portion of the court’s order denying injunctive relief, and it will not be addressed further.

We consider first defendant’s contention that plaintiffs’ proposed assignment of their beneficial interest in the land trust is precluded by the collateral agreement they executed. Defendant’s argument is two-fold: (1) the collateral agreement signed by plaintiffs assigned the entire beneficial interest in the land trust to defendant as security for the loan and therefore plaintiffs now own nothing capable of assignment; ánd (2) defendant was given the sole power of direction over the trust.

An Illinois land trust is an arrangement under which, pursuant to statute (Ill. Rev. Stat. 1979, ch. 29, par. 8.31), legal and equitable title to real property is held by a trustee and the interest of the beneficiary is personal property. (First National Bank v. Oldenburg (1981), 101 Ill. App. 3d 283, 427 N.E.2d 1312.) The owner of the beneficial interest in a land trust is accorded four basic powers: (1) to possess, manage and physically control the real estate; (2) to receive all income generated by the property; (3) to direct the trustee in dealing with title to the real estate; and (4) to receive the proceeds of any sale of the property made pursuant to the power of direction. (Dorman v. Central National Bank (1981), 97 Ill. App. 3d 429, 432, 422 N.E.2d 1019, 1021-22; In re Application of County Treasurer (1973), 16 Ill. App. 3d 385, 390, 306 N.E.2d 743, 748.) The owner of the beneficial interest also is empowered to transfer all or any number of the incidents of his beneficial ownership and may do so by a general assignment of the beneficial interest, excepting therefrom that which he seeks to retain. Dorman v. Central National Bank (1981), 97 Ill. App. 3d 429, 433, 422 N.E.2d 1019, 1022; Rudolph v. Gersten (1968), 100 Ill. App. 2d 253, 264, 241 N.E.2d 600, 605; see also Schwinn v. Northern Trust Co. (1966), 75 Ill. 2d 88, 220 N.E.2d 867, appeal denied (1967), 35 Ill. 2d 632.

The collateral agreement by which plaintiffs assigned their beneficial interest to defendant was prepared by it and specifically excepted from the assignment certain incidents of beneficial ownership which plaintiffs retained: the right to manage the property and to receive the income it would produce. Defendant’s assent to the retention of these rights by plaintiffs is consistent with its apparent belief that the additional security for the loan it made to plaintiffs would be provided by the assignment to it of the power to direct conveyance of legal title to the property by the trustee and the further right to receive the proceeds of any such sale in satisfaction of plaintiffs’ outstanding indebtedness to it. It is apparent that plaintiffs retained some incidents of the beneficial interest in the land trust which could be assigned to a third party.

Nor does the fact plaintiffs assigned the power of direction over the trustee aid defendant. The power of direction held by defendant is the right to order the trustee to convey or otherwise deal with legal title to the property, the land trust res, but the underlying land trust arrangement is not disturbed by a change in the ownership of the power of direction. Plaintiffs retained a portion of their beneficial interest when they assigned their power of direction to defendant, and defendant did not thereby acquire a right to control the proposed assignments of such interest by plaintiffs. See In re Application of County Treasurer (1973), 16 Ill. App. 3d 385, 306 N.E.2d 743; Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 176 N.E.2d 659; Kenoe, Land Trusts §§2. 18, 2.19, at 2-27, 2-28 (Ill. Inst. Cont. Leg. Educ. 1981).

We conclude the trial judge correctly determined that the collateral assignment security agreement did not bar a further assignment of the incidents of beneficial ownership specifically retained by plaintiffs in that document.

We now turn to defendant’s principal contention that the trial court erred in determining that the due-on-conveyance clause of the mortgage would not apply to accelerate payment on assignment of the beneficial interest in the trust retained by plaintiffs.

The leading case considering due-on-conveyance clauses in Illinois is Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 121, 333 N.E.2d 1, 2, where the mortgage gave the mortgagee certain rights in the event of a “sale, assignment or transfer of any right, title or interest in and to [the] property or any portion thereof” by the property-owner mortgagor. In Baker the mortgagor had entered into a contract for the sale of the subject property which would require him to convey legal title. The supreme court stated that while such clauses are restraints upon the free alienation of property they will be upheld as they are reasonable. The cases following Baker have further considered its holding in terms of various legal and equitable defenses to the enforcement of similar clauses. (See, e.g., Slevin Container Corp. v. Provident Federal Savings & Loan Association (1981), 98 Ill. App. 3d 646, 424 N.E.2d 939; First National Bank v. Brown (1980), 90 Ill. App. 3d 215, 412 N.E.2d 1078; 2140 Lincoln Park West v. American National Bank & Trust Co. (1980), 88 Ill. App. 3d 660, 410 N.E.2d 990.) However, the reviewing courts of this State have not heretofore considered the scope of a due-on-conveyance clause under the circumstances presented in this case.

Defendant argues the clause in this case allowing acceleration upon conveyance or agreement to convey title by plaintiffs includes any transaction which would give possession and control of the real estate to a third party. It contends plaintiffs’ proposed assignment of the beneficial interest in the land trust retained by them has all the earmarks of a sale or conveyance in that the assignee would be entitled to possess, manage and collect income from the property. Plaintiffs contend the due-on-conveyance clause would not apply to their proposed assignment, however, because only their personal property, the retained portion of the beneficial interest in the land trust, would be assigned, and the legal and equitable title to the real estate held by the Bank of Waukegan would not be conveyed. Plaintiffs argue the due-on-conveyance clause does not clearly favor defendant’s interpretation and is at most ambiguous, requiring a construction against defendant.

As this court recently stated in First National Bank v. Oldenburg (1981), 101 Ill. App. 3d 283, 286-87, 427 N.E.2d 1312, 1315, by statute a land trust agreement “vests title, both legal and equitable, to the real property in the trustee while the interest of the beneficiary of the trust is personal property” and “the trustee is absolute owner of the real estate.” (See In re Estate of McGaughey (1978), 60 Ill. App. 3d 150, 376 N.E.2d 259.) The due-on-conveyance clause in the present case provides that acceleration is allowed only upon conveyance or entry into an agreement to convey “title” to “all or a portion of the premises.” A plain reading of this clause in light of the nature of the component interests of a land trust arrangement would seem to render it inapplicable to plaintiffs’ proposed assignment of their remaining beneficial interest, as “title” to the real property will remain in the land trustee.

Defendant places its primary reliance on Williams v. First Federal Savings & Loan Association (4th Cir. 1981), 651 F.2d 910, aff'g (E.D. Va. 1980), 500 F. Supp. 307, the only case cited which has discussed the scope of a due-on-conveyance clause in the context of the assignment of a beneficial interest in a land trust. Williams involved consolidated cases and the respective clauses there provided for acceleration upon either “the property or an interest therein [being] sold or transferred”; “title to the property [being] transferred”; or if the property was “sold or conveyed.” Each deed of trust also allowed the full debt to be called due in the event of a “sale or conveyance of the property.” The court’s opinion set forth the factual circumstances of only one of the plaintiffs. In that case, defendant agreed to lend funds to plaintiff’s assignor to be secured by a deed of trust containing a due-on-conveyance clause. The assignor thereafter executed a typical real estate contract in which the subject of the sale was described as the beneficial interest in a land trust to be created by her. Two months later the assignor created a land trust by which she conveyed to herself, as trustee, title to the real property; the assignor was also the designated beneficiary of the land trust. Subsequently, she assigned the beneficial interest in the land trust to plaintiff, and the lending agency asserted the acceleration clause.

Plaintiff argued he had only been assigned personal property, the beneficial interest in a land trust, and therefore the real property which was still owned by his assignor, who retained legal and equitable title to it, had not been sold, conveyed or transferred within the scope of the due-on-conveyance clause. Plaintiffs maintained each of the due-on-sale clauses under review was ambiguous and should have been construed to avoid acceleration, in favor of the free alienation of property and against the lending institution which possessed special knowledge and expertise and prepared the deeds of trust in question. The Williams court found no ambiguity, however, and held that the individual documents executed by plaintiff’s assignor, taken together as a comprehensive transaction, accomplished a sale, conveyance or transfer to plaintiff because he and not his assignor became entitled to occupy the real estate. The court noted that had the assignor merely conveyed legal title to plaintiff, instead of using the artificial, circuitous route of conveying the property to herself in trust and then assigning the beneficial interest to plaintiff, acceleration of the debt by the defendant clearly would have been allowed.

We think Williams must be distinguished under the facts of the present case. That court relied upon the artificial nature of the transactions between Williams and his assignor which demonstrated an intent to avoid acceleration of the debt by such maneuvers. In the present case, defendant cannot be heard to complain on similar grounds as the real estate was in a land trust well before the execution of the mortgage. In fact, defendant had expressly conditioned its loan commitment upon the property being held in trust. We do not consider that plaintiffs’ effort to assign the retained beneficial interest they have owned since before the execution of the mortgage, and the method by which they proposed to do so, constitutes an artificial transaction designed merely to circumvent the due-on-conveyance clause.

Although defendant argues a fair construction of the term “conveyance” includes any creation, alienation or assignment of an estate or interest in real property, citing Black’s Law Dictionary 301 (5th ed. 1979), it fails to account for the narrower meaning which must follow from reading the entire clause which speaks of a “conveyance of title.” This concept of “title” in a land trust context limits the scope of the clause defendant seeks to enforce and serves to further distinguish Williams. One of the clauses in Williams allowed acceleration if “title” to the property was transferred, but the deed of trust also provided in a second, less limited clause for an option in the lending institution to call the full debt due in the event of a sale or conveyance. The Williams court held the creation of a land trust and assignment of the beneficial interest therein, taken together, constituted a sale or conveyance; it did not address whether the transactions combined to transfer “title.”

In People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540, the court considered a property tax imposed upon the “owner” of property and held the land trust beneficiary rather than the trustee is owner for tax purposes because it derives the benefits from the real estate. However, the court drew a distinction between ownership for tax purposes and title, and the due-on-conveyance clause in the present case is specifically directed to conveyances of title rather than to those who derive benefits from the property. Mutual Federal Savings & Loan Association v. Wisconsin Wire Works (1973), 58 Wis. 2d 99, 205 N.W.2d 762, cited by defendant, must also be distinguished. There the court noted that a contract purchaser of property acquired equitable title by the contract of sale and legal title remained in the seller until delivery of a deed. It concluded that by executing the sales contract the seller vested a type of “title” in a third party and it was therefore within the scope of a due-on-conveyance clause which provided for acceleration in such circumstances. In the present case, however, no legal or equitable title to real estate would be conveyed by the assignment by plaintiffs of their remaining beneficial interest in the trust. See In re Estate of Alpert (1981), 102 Ill. App. 3d 600, 430 N.E.2d 181; In re Estate of McGaughey (1978), 60 Ill. App. 3d 150, 376 N.E.2d 259.

At most, defendant has shown that the due-on-conveyance clause in question is ambiguous. The word “title” is susceptible to different meanings as is the phrase a “portion” of the property which defendant suggests must include a beneficial interest in a land trust. Defendant has not persuaded us that the clause it seeks to enforce clearly must be read as it contends.

It is well established that written instruments will be construed reasonably to avoid absurd results and to give effect to the intention of the parties (e.g., Tatar v. Maxon Construction Co. (1973), 54 Ill. 2d 64, 294 N.E.2d 272), and courts will consider documents in their entirety and must not reject words as mere surplusage (e.g., Johnson v. Continental Illinois National Bank & Trust Co. (1967), 88 Ill. App. 2d 124, 232 N.E.2d 59). However, legal documents which are ambiguous are strictly construed against the party who prepared them. (Massie v. Belford (1873), 68 Ill. 290, 292; Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App. 3d 420, 423, 393 N.E.2d 107, 110.) It is assumed the author wanted the words it chose to be used (Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 1118, 405 N.E.2d 351, 354-55), and it cannot complain when a construction favorable to the opposing party is adopted (Walker v. Kimball (1859), 22 Ill. 537, 539). These principles are especially applicable where the preparer of the document has a certain expertise in an area from the years it has engaged in drafting similar instruments. (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 &. 2d 105, 116, 251 N.E.2d 242, 248.) The reviewing courts of this State and other jurisdictions have usually construed due-on-conveyance clauses, as restraints upon the alienation of property, strictly against the lending institution which prepared them. 2140 Lincoln Park West v. American National Bank & Trust Co. (1980), 88 Ill. App. 3d 660, 664, 410 N.E.2d 990, 993; Rayford v. Louisiana Savings Association (La. App. 1980), 380 So.2d 1232, 1238, cert. denied (La. 1980), 384 So.2d 793; Fidelity Land Development Corp. v. Rieder & Sons Building & Development Co. (1977), 151 N.J. Super. 502, 514, 377 A.2d 691, 697; Silver v. Rochester Savings Bank (1980), 73 App. Div. 2d 81, 86, 424 N.Y.S.2d 945, 948.

A due-on-conyeyance clause in a mortgage is a restraint upon the alienation of property. (Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 124, 333 N.E.2d 1, 4.) As the supreme court stated in Illinois Christian Missionary Society v. American Christian Missionary Society (1917), 277 Ill. 193, 197-98, 115 N.E. 118, 120:

“Restrictions as to the power of alienation are not favored, and the policy of this State has always been to construe such restrictions with the utmost strictness, to the end that the restraint shall not be extended beyond the expressed stipulation, and all doubts, as a general rule, must be resolved in favor of a free use of property and against restrictions.”

Restraints upon the alienation of property are construed narrowly even if they are otherwise reasonable (see Cities Service Oil Co. v. Taylor (1932). 242 Ky. 157, 45 S.W.2d 1039; Moody v. Moody National Bank (Tex. Civ. App. 1975), 522 S.W.2d 710; Seattle First National Bank v. Crosby (1953), 42 Wash. 2d 234, 1254 P.2d 732; see also 61 Am. Jur. 2d Perpetuities §103 (1981)), as due-on-conveyance clauses are in Illinois (Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 125, 333 N.E.2d 1, 4).

In those jurisdictions in which due-on-conveyance clauses have been construed as to their inclusiveness, the general rule which has evolved was set forth in Chopan v. Klinkman (Fla. App. 1976), 330 So.2d 154, 156:

“ ‘° * * [A] contract to accelerate the maturity of a debt gives a remedy that is harsh in its nature, and provision therefor, in order to be effective, should be clear and unequivocal; and, if there is a reasonable doubt as to the meaning of the terms employed, preference should be given to that construction which will * * * prevent acceleration of maturity.’ ” (Quoting 10 C.J.S. Bills & Notes §251 (1938).)

(See also Tucker v. Lassen Savings & Loan Association (1974), 12 Cal. 3d 629, 526 P.2d 1169, 116 Cal. Rptr. 633; Lipkowitz & Plant v. Affrunti (Sup. Ct. 1978), 95 Misc. 2d 849, 407 N.Y.S.2d 1010; In re Estate of Robbins (P. Ct. 1964), 28 Ohio Op. 2d 399, 200 N.E.2d 735; Crumley v. Ramsey (Tex. Civ. App. 1936), 93 S.W.2d 191; Annot, 69 A.L.R.3d 713 (1976).) A leading author of an authoritative treatise on land trusts has applied this general rule to the assignment of a beneficial interest in a land trust and remarked:

“Where the mortgage or trust deed has been executed by a land trustee, a conveyance of the title out of the trust will, in most instances, activate the clause, and permit the mortgagee to insist upon payment. An assignment of the beneficial interest under the land trust, however, may not have that effect, unless the clause is specific and extends to all interests in the property. * * *
* * * These clauses do not have universally consistent language. A prohibition against sale and conveyance’ would probably not apply to an assignment of the beneficial interest; but a clause which restricts sale or any alienation of the ‘property or any part thereof, or any interest therein, would very likely include an assignment transaction and cause the mortgage to be callable at the election of the mortgagee.” (Kenoe, Land Trusts §6.38, at 6-66, 6-67 (Ill. Inst. Cont. Leg. Educ. 1981).)

See also Flaherty, Illinois Land Trusts and the Due-on-Sale Clause, 65 Ill. B. J. 376, 378 (1977) (clause not enforceable in event of assignment of beneficial interest in land trust because what is transferred is personal property, not real estate or any interest therein).

To adopt defendant’s construction would be to interpret the ambiguous concept of “title” in a manner contrary to the well-established rule which rejects restraints on the free alienation of property except where clearly provided for. We must therefore give preference to a reading of the clause which prevents acceleration by construing it against defendant, which not only prepared the mortgage document with its narrow due-on-conveyance clause, but which also knew that plaintiffs would at defendant’s direction hold the property securing the loan in a trust.' Defendant's further argument that an assignment of plaintiffs’ beneficial interest in the land trust was within the scope of the due-on-conveyance clause because it was a “portion of the premises” is equally without merit. While the acceleration clause would be triggered by an agreement to convey title to a portion of the premises, this modifying language seems to have contemplated a conveyance of “title” to less than all of the property involved rather than an assignment of the beneficial interest in a land trust in which the property was held.

We conclude plaintiffs’ proposed assignment of so much of their beneficial interest as they retained in the collateral assignment security agreement would not give rise to an option of acceleration in the defendant lending institution under its due-on-conveyance clause.

For the foregoing reasons, the judgment of the circuit court of Lake County will be affirmed.

Affirmed.

HOPF and LINDBERG, JJ., concur.

       The Illinois Savings and Loan League, as amicus curiae, urges the trial court’s order be reversed because, by temporarily denying injunctive relief, it did not terminate the controversy between the parties. (See Ill. Rev. Stat. 1979, ch. 110, par. 57.1.) We do not believe the court’s order is subject to such an attack as it did conclusively determine the rights of the parties on a definite part of their dispute. See Amos v. Norwood Federal Savings & Loan Association (1977), 47 Ill. App. 3d 643, 365 N.E.2d 57 (court could declare whether assignment of beneficial interest in land trust violated due-on-conveyance clause although transfer was merely proposed and no contract to purchase had yet been executed).


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT HOTHERSALL, Defendant-Appellee.
    Second District
    No. 81-148
    Opinion filed December 31, 1981.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate.Service Commission, of counsel), for the People.
    Raymond R. Massucci, of Massucci, Blomquist and Brown, and John D. Tourtelot, both of Arlington Heights, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The defendant, Robert Hothersall, was charged by information with two counts of obstructing justice (Ill. Rev. Stat. 1979, ch. 38, par. 31—4(a)) and one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1979, ch. 56½, par. 1402(b)); all offenses were alleged to have occurred on March 14,1980, in Du Page County, Illinois.

Apparently, these charges were based on events that occurred shortly after the defendant was arrested on an outstanding warrant. This warrant charged the defendant with the February 3, 1980, offense of unlawful possession of hypodermic syringes or needles. Ill. Rev. Stat. 1979, ch. 38, par. 22—50.

Defendant moved to quash the arrest on the grounds that the arrest was made without the authority of a valid warrant, and to suppress all evidence secured directly or indirectly as a result of the arrest. The trial court granted the motion. The State brings this appeal.

The following evidence was adduced at the hearing on the motion. On February 3, 1980, Sergeant Edward S. Musial of the city of Darien police department stopped a van driven by the defendant Robert Hothersall. The van, which belonged to the defendant, was stopped for displaying expired license plates. While the vehicle was stopped, the officer smelled marijuana smoke. Looking inside the vehicle, the officer found a recently extinguished cigarette which resembled a marijuana cigarette. In an opening in the dashboard, he observed a box which contained two unused, disposable, hypodermic syringes. The officer requested an explanation. The defendant stated that his brother was diabetic and the syringes belonged to his brother.

On February 19,1980, Sergeant Musial swore out a complaint against the defendant. In the sworn complaint, the sergeant charged that at or about 8:40 p.m. on the 3d day of February, 1980, the defendant committed the offense of unlawful possession of a hypodermic syringe or needle. (Ill. Rev. Stat. 1979, ch. 38, par. 22—50.) At the hearing, Officer Musial was asked to relate what information he had given to the judge when seeking the warrant. Officer Musial responded as follows:

“I explained my initial stop of the van, of the expired registration, that I smelled the odor of marijuana, observed the marijuana cigarette, entered the van and observed the syringe box and needles inside; had a conversation with Mr. Hothersall.
And the syringes and needles, I told him that I offered him two-days’ time—
He told me they belonged to his brother, who is a diabetic.
I offered him two-days’ time to come into our station and offer proof that they actually did belong to his brother and they would be returned to his brother.
And I told him after two days, at a later date, I would obtain a warrant for his arrest if he didn’t come in.”

A warrant for defendant’s arrest issued.

Officer Musial further testified that between the initial stop and the obtaining of the warrant, he had a conversation with an investigator named Abma. During this conversation, Musial learned that earlier Abma had talked to the defendant’s mother. She had told Abma that the defendant’s brother, John, is a diabetic and defendant’s brother, Barry, is an epileptic, and that both Barry and John carry syringes and they also have a letter from their doctor. This information was entered by Abma on the police record. When seeking the warrant, however, Musial did not relate to the issuing judge this statement made by the defendant’s mother.

In his motion to suppress and at the hearing on the motion, the defendant contended that Officer Musial’s failure to relate the statement of defendant’s mother to the issuing judge was a deliberate misrepresentation, and that had this statement been made known to the judge, the warrant would not have issued.

After the hearing, the trial court found that in obtaining the arrest warrant the officer deliberately deceived the issuing judge by not informing the judge of those facts which created doubt as to probable cause. The trial judge stated that this deliberate deception was not to be condoned, and the defendant’s motion to suppress was granted.

The State contends that the trial court erred in quashing the warrant. The State asserts that the sufficiency of a warrant may be tested only by the evidence originally presented to the judicial officer at the time the warrant was obtained, and that the defendant may not challenge the matters upon which probable cause was found. (People v. Bak (1970), 45 Ill. 2d 140, 144.) The State concludes that because Officer Musial supplied the issuing judge with sufficient information to support an independent finding that probable cause existed, the warrant is valid and should not have been quashed. (Whiteley v. Warden (1971), 401 U.S. 560, 564, 28 L. Ed. 2d 306, 311, 91 S. Ct. 1031, 1035.) However, in a more recent case, Franks v. Delaware (1978), 438 U.S. 154, 155, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676, the United States Supreme Court held that the constitution forbids an absolute ban on hearings to challenge the veracity of a sworn statement used by police to procure a search warrant. The scope of Franks, however, is narrowly limited, both as to when a hearing upon the defendant’s allegations must be accorded, and when the exclusion of the seized evidence is mandated. (People v. Anderson (1979), 74 Ill. App. 3d 363, 369.) Under Franks, a defendant may have a hearing to challenge the validity of a warrant only if certain requirements are met:

“To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” (Franks v. Delaware (1978), 438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684.)

Thus, Franks establishes a two-part test that must be met before the defendant is entitled to attack the veracity of the affiant’s statement: (1) there must be a knowing and intentional or reckless disregard for the truth, and (2) the alleged falsehood must be necessary for a finding of probable cause. See People v. O’Dell (1980), 84 Ill. App. 3d 359, 365.

Here, the trial court found that Officer Musial’s failure to relate the statement of the defendant’s mother to the issuing judge was a reckless disregard for the truth. A deliberate omission of material fact can be a reckless disregard for the truth as envisioned by Franks v. Delaware. People v. Reynolds (1981), 96 Ill. App. 3d 79, 82; see also People v. Townsend (1980), 90 Ill. App. 3d 1089, 1096.

In Reynolds, the State obtained a warrant to search the defendant’s Peoria apartment for proceeds of a robbery which had occurred in Pekin, Illinois. The officer executing the search warrant was aware of facts which would have established that there was insufficient time between the Pekin robbery and the defendant’s arrest, which also occurred in Pekin, for the defendant to have deposited the proceeds in his Peoria apartment. The appellate court held that the affidavit in support of the warrant was insufficient in that it lacked a recitation of facts which would indicate that Reynolds had an opportunity to deposit the evidence in his Peoria apartment. The officer failed to allege facts indicating that Reynolds had an opportunity to deposit the evidence because he knew that Reynolds had no such opportunity. The officer’s failure to relate such facts to the issuing judge was, therefore, determined to be a deliberate omission calculated to mislead the issuing judge. The appellate court in Reynolds determined that this deliberate omission of a material fact was a reckless disregard for the truth as envisioned by Franks v. Delaware.

Here, unlike Reynolds, there was no omission of a material fact. The officer seeking the arrest warrant merely failed to relate to the issuing judge a hearsay statement which was, more or less, in the form of a defense. Unlike the officer in Reynolds, Officer Musial did not know for a fact that defendant’s brothers were authorized to possess hypodermic syringes. He knew only that a woman purporting to be the defendant’s mother had called Investigator Abma and reported that defendant’s brothers were so authorized. While his failure to relate the statement may be characterized as a disregard for a hearsay statement, it cannot be characterized as a reckless disregard for the truth. Thus, the defendant has failed to meet the first requirement which would enable him to attack a warrant under Franks v. Delaware.

Franks v. Delaware also requires that the officer’s falsehood be necessary for a finding of probable cause. (438 U.S. 154, 172, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684.) This requirement was met in Reynolds. In Reynolds, if the omitted facts had been related to the issuing judge they would have precluded a finding of probable cause to search the Peoria apartment.

In the present case, even if Officer Musial had known for a fact that the defendant’s brothers were authorized to carry hypodermic syringes, relating this information to the issuing judge would not have precluded the judge from finding that probable cause existed for the issuance of a warrant against the defendant. While sections 1 through 5 of “An Act to regulate the possession, delivery, sale or exchange of hypodermic syringes, hypodermic needles, and similar instruments” (Ill. Rev. Stat. 1979, ch. 38, pars. 22—50 through 22—54) exempt from prosecution certain persons who are under a doctor’s care, there is no exemption for brothers of those patients. We note that the defendant has never asserted that he was authorized to possess hypodermic syringes, and it is undisputed that two hypodermic syringes were found in the van which he owned and which he was driving. Even if the officer had disclosed the statements made by defendant’s mother, this information would not have precluded a finding of probable cause. Thus, the defendant has also failed to meet the second requirement of Franks v. Delaware.

The defendant, nonetheless, claims that the trial court correctly granted the motion to quash in that if the issuing judge had had any opportunity to consider the omitted statement of defendant’s mother, he might not have found that probable cause existed. A police officer seeking an arrest warrant is not required to present to an issuing judge any and all circumstances which may affect a finding of probable cause. Such a requirement is impractical and would expand the scope of Franks v. Delaware to such a degree that virtually every warrant would be subject to a similar attack. The requirement is only that the officer present sufficient evidence so that the issuing judge may make a finding of probable cause.

Finally, the defendant’s contention that the failure to relate the hearsay statement of defendant’s mother affected the issuing judge’s status as “a neutral and detached magistrate” is totally without merit. See Shadwick v. City of Tampa (1972), 407 U.S. 345, 32 L. Ed. 2d 783, 92 S. Ct. 2119.

The order of the trial court granting/defendant’s motion to quash the arrest and suppress all evidence secured directly or indirectly as a result of said arrest is vacated and the cause is remanded for further proceedings consistent with this opinion.

Vacated and remanded.

SEIDENFELD, P. J., and REINHARD, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
      In re MARRIAGE OF GLEN MUSA, Petitioner, and KATHLEEN J. MUSA, Respondent and Third-Party Petitioner-Appellant.—(MARGARET O. VOGEL, Third-Party Respondent-Appellee.)
    Second District
    No. 81-500
    Opinion filed January 6, 1982.

      Paul H. Stacey, of Wheaton, for appellant.
    David F. Rolewick, of Wheaton, and Daniel Nagle, of Chicago, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Kathleen J. Musa, the respondent in a dissolution of marriage proceeding, filed a third-party petition against Margaret O. Vogel, her mother-in-law, claiming an oral contract to purchase the marital residence. Mrs. Vogel filed a motion to dismiss pursuant to section 48(1) (i) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1) (i)). The trial court dismissed the action based upon the pleadings, including the respective affidavits of the parties, and the petitioner appeals.

The petition alleged that both spouses at the time of the marriage deposited money in a joint bank account which was owned by the husband and his mother in joint tenancy; that all funds deposited in the account were to be applied towards a down payment on the purchase of the marital residence for an agreed-upon purchase price of $54,000; that the mother-in-law contributed nothing to the account, and wrongfully withdrew $10,000 from it without negotiating a closing for the sale. Mrs. Vogel’s section 48 motion to dismiss alleged that all of the payments in the account were rents and that no contract of sale was ever made. The motion was supported by the affidavits of Glen Musa, Margaret O. Vogel and Aaron Primas, a friend of Glen Musa and Vogel, who was also the executor of the estate of the father of Glen Musa. Essentially the affidavits stated that there was an oral agreement to rent the property for the sum of $500 per month; that as a matter of convenience and for payment of the rental the spouses agreed that the payments would be placed in the joint account; that it was agreed that if Mrs. Vogel required money on an emergency basis the husband would send it to her; that insubstantial improvements were made to the rented premises, including replacement of a kitchen counter top, replacement of the kitchen sink, wall paper, installation of a dishwasher and installation of carpeting; and that there was at no time a contract for the purchase or request to purchase during the time the parties were in possession. Kathleen Musa filed a response and several affidavits. The affidavits alleged that during their engagement Mrs. Vogel agreed to permit Glen and Kathleen to live, after their marriage, rent-free in the residence; that from the date of their marriage they were to deposit money into the joint bank account; that all funds were to be applied towards a down payment; that Mrs. Vogel agreed to sell the home for $54,000; that there was at no time a discussion of rental payments; that there were substantial improvements made, including remodeling in the kitchen, additional plumbing, and installation of carpeting which cost the spouses several thousand dollars. Also, that they paid the property taxes out of their pay checks and not from the joint bank accounts; and that it was not until three days after the petitioner filed the divorce proceedings that the money was withdrawn. The affidavits also alleged various conversations in which Mrs. Musa allegedly explained to affiant the rent-free arrangement and the purchase agreement. One of the affiants related that the arrangement was stated by Mrs. Musa before the marriage at a time when her fiancé Glen Musa was present.

At the hearing on the motion counsel for Mrs. Vogel proposed to present the testimony of four witnesses. Mrs. Musa’s attorney objected on the basis that section 48 called for the use of affidavits and not “live” testimony in connection with the motion, but that trial was required. The court then asked whether Mrs. Musa’s counsel was asking to settle the matter based on the affidavits which had been presented, to which the response was “Right.” The court then proceeded to grant the motion to dismiss without hearing oral arguments and without taking further evidence.

The initial question is whether the motion to dismiss raised “other affirmative matters avoiding the legal effect of or defeating the claim,” as required under section 48(1) (i). Petitioner contends that this section refers only to true affirmative defenses, that the defense here is merely a negation of the allegations of the ultimate facts stated in the petition and not an affirmative defense.

Section 48(1) (i) includes many matters which cannot be classified as true affirmative defenses. (Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 93.) To the extent that Brewer v. Stovall (1977), 54 Ill. App. 3d 261, cited by respondent, may be read to have a more restrictive view of “affirmative matters,” we disagree. We have broadly construed “affirmative matters” to include defenses more basic than affirmative defenses. (Ingersoll v. Klein (1969), 106 Ill. App. 2d 330, 336, aff'd (1970), 46 Ill. 2d 42 (choice of láw an affirmative matter); Kilbane v. Sabonjian (1976), 38 Ill. App. 3d 172, 175 (truth an affirmative matter against libel); Hermes v. Wm. F. Meyer Co. (1978), 65 Ill. App. 3d 745, 747 (plaintiff’s lack of standing an affirmative matter).) “ ‘[Affirmative matter’ as that term is used in section 48(1) (i) is something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint.” Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 96. See also Smith v. St. Therese Hospital (1980), 87 Ill. App. 3d 782, 785; Meeker v. Webner (1977), 51 Ill. App. 3d 716, 719.

Mrs. Musa argues that whether the oral agreement was a lease or a contract of sale is a complex question which should not be decided on motion. We acknowledge that “[t]he main purpose of section 48 is to provide a means of disposing of issues of law or of easily proved issues of fact” (Dangeles v. Marcus (1978), 57 Ill. App. 3d 662, 667); also, that it is not an appropriate motion if it merely seeks to controvert the allegations of ultimate fact made in the petition. (Smith v. St. Therese Hospital. (1980), 87 Ill. App. 3d 782, 785.) We conclude, however, that Mrs. Vogel as the movant has done more than merely offer evidence to refute the allegations of the petition. In Meeker v. Webner (1977), 51 Ill. App. 3d 716, a somewhat similar factual setting was considered. Meeker, engaged in the business of selling grain bins, and the Webners signed two documents; one was titled "Purchase Agreement” and the other, “Lease Agreement.” Meeker obtained a judgment against the Webners on the theory that they had defaulted on the purchase contract, and the Webners satisfied the judgment. Then, Meeker filed suit in replevin seeking the return of the equipment, and the defendants filed a motion to dismiss under section 48. Finding that the underlying transaction was a sale and not a lease, the trial court determined that the defendants were the owners of the property so that a suit in replevin was barred. In granting the motion to dismiss pursuant to section 48(1) (i), the court concluded that whether the underlying transaction between the parties was a lease or whether it was a sale could properly be disposed in the section 48 proceeding.

While Meeker is distinguishable in that the court had before it written agreements rather than the conflicting oral agreements, we do not see the form of agreement as controlling. The Meeker court was called upon in the section 48 proceeding to decide which of two agreements, both of which related to the same equipment, was applicable. Here, a similar question was before the trial court, whether the Musas had entered into a contract for the purchase of the property or were merely agreeing to a lease.

We therefore conclude that the subject matter of the dispute was within the purview of section 48(1)(i). Upon our examination of the pleadings and affidavits, however, we conclude that the motion was improperly granted.

Under section 48(3), the court has the discretion to decide conflicting claims on the basis of proper pleadings, supporting affidavits and counteraffidavits, and the evidence offered by the parties where, as here, no jury issue or demand is involved. (See Ill. Rev. Stat. 1979, ch. 110, par. 48(3); Greenstein v. Nogle (1972), 5 Ill. App. 3d 594, 599.) Upon hearing the motion the court may resolve genuine questions of material facts rather than simply determine whether such questions exist. North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 410.

In these proceedings the section 48 movant offered to present testimonial evidence but did not do so when the third-party petitioner objected. Nevertheless, the court could not decide the disputed issues on the basis of affidavits alone. They do not afford a sufficient factual basis for the court to determine whether there was a lease or a contract of sale. The court cannot weigh the conflicting affidavits. (Greenstein v. Nogle (1972), 5 Ill. App. 3d 594, 599; Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967, 973; Emerson v. La Salle National Bank (1976), 40 Ill. App. 3d 794, 797.) The only undisputed facts in the affidavits are that money was deposited by the Musas in a joint tenancy savings account controlled by Glen Musa and his mother; that the mother contributed nothing to the account; that certain improvements were made on the residence and that Mrs. Vogel withdrew approximately $10,000 from the joint account some time after the couple had separated. The cost and extent of improvements to the marital residence and the source of payment of property taxes were circumstances material to the ultimate determination of whether the oral agreement was for a sale or lease. (Cf. Exchange National Bank v. Heller (1975), 26 Ill. App. 3d 675, 682; E-Z Livin’ Mobile Sales, Inc. v. Van Zanen (1976), 26 Ariz. App. 363, 365, 548 P.2d 1175, 1177; 51C C.J.S. Landlord & Tenant §202(8) (1968).) The very circumstances stated as to the joint account were also subject to conflicting inferences. These were factual matters that could only have been decided after an evidentiary hearing.

Since the trial court did not hold an evidentiary hearing, we reverse and remand the judgment dismissing the petition, with directions either to hear other proofs bearing upon the material facts or to deny the motion without prejudice to the right of third-party respondent to raise the subject matter by answer and proceed to trial. See Hoefferle v. Hoefferle Truck Sales, Inc. (1978), 57 Ill. App. 3d 40, 44; Mastroianni v. Curtis (1979), 78 Ill. App. 3d 97, 101.

Reversed and remanded with directions.

REINHARD and NASH, JJ., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL FLEMING, Defendant-Appellant.
    Second District
    No. 80-335
    Opinion filed December 29, 1981.

      Mary Robinson, of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Paula R. Johnson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Earl Fleming, was convicted by a jury in Winnebago County of the offense of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9—1) and sentenced to a term of 30 years imprisonment. Defendant appeals.

Defendant argues that the trial court erred in denying his motion to suppress statements, because the evidence showed that police failed to “scrupulously honor” his right to remain silent. Before reaching the merits of this issue we must determine whether defendant has waived consideration of this issue on appeal. The record reveals that the defendant failed to raise this issue specifically in his written motion for a new trial. The general catchall language used by defendant in his post-trial motion is ineffective to prevent waiver of a specific issue. (People v. Edwards (1977), 49 Ill. App. 3d 79, 81, rev'd on other grounds (1978), 74 Ill. 2d 1, cert. denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862; People v. Rogers (1975), 32 Ill. App. 3d 788, 790, 336 N.E.2d 784.) Therefore, this issue is waived unless it is considered pursuant to the plain-error doctrine. (Ill. Rev. Stat. 1979, ch. 110A, par. 615(a); People v. Jackson (1981), 84 Ill. 2d 350, 359, 418 N.E.2d 739.) In reviewing the record in the instant case we have concluded that there is no plain error.

Defendant’s argument is that he was improperly questioned after he invoked his right to remain silent. Upon arrival at the police station defendant gave the necessary information for a booking slip to be filled out. He was then adyised of his rights under Miranda and he refused to sign the waiver of rights form. He was left in the holding cell for 1 hour and 45 minutes until he was taken to the detective bureau. At this time he signed the form and made his statement. Defendant contends he was questioned twice. The record is not clear in this regard. However, we are of the opinion that whether defendant was questioned once or twice there was still no plain error.

We first consider defendant’s argument assuming there was requestioning. The record shows that defendant was approached and asked for his driver’s license by the police; asked about his whereabouts that evening; and asked for information in order to fill out the booking slip. If this is considered to be questioning, then we must consider whether the subsequent requestioning was improper.

In Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321, the Supreme Court explained under what circumstances consistent with the dictates of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, questioning may be renewed once a person in custody has invoiced his right to remain silent. The court in Mosley concluded that the inadmissibility of statements obtained after a person in custody has decided to remain silent depends on whether his right to cut off questioning was scrupulously honored.

The following three factors have been emphasized by Illinois courts in determining whether under Mosley a defendant’s right to cut off questioning has been scrupulously honored: (1) whether there is a passage of a significant amount of time between questioning sessions; (2) whether subsequent questioning is by a different officer and prefaced by fresh Miranda warnings; and (3) whether subsequent questioning involves a completely different crime. (People v. Goodrich (1977), 48 Ill. App. 3d 141, 145, 362 N.E.2d 798.) The fact that a person in custody has invoked his right to remain silent does not preclude all future inquiries by police to see if he has changed his mind. (People v. Colley (1980), 83 Ill. App. 3d 834, 841, 404 N.E.2d 378.) In deciding whether a defendant’s right to remain silent has been scrupulously honored courts will also look to see whether there is evidence of repeated and persistent efforts to wear down the defendant and make him change his mind or evidence of police coercion or intimidation. People v. Payton (1980), 91 Ill. App. 3d 78, 82, 414 N.E.2d 283.

In the instant case the 1 hour and 45 minute time period between questioning sessions satisfies the Mosley requirement that there be a significant time period between interrogation sessions. (See, e.g., Mosley (two hours); People v. Pleasant (1980), 88 Ill. App. 3d 984, 411 N.E.2d 132 (1/2 hours).) Defendant was questioned by different officers during the second session and was given fresh Miranda warnings. Yet, during the second questioning period defendant was asked about the same crime as during the first session. In People v. Robinson (1980), 87 Ill. App. 3d 621, 626, 410 N.E.2d 121, 125, the court stated:

“As long as the record supports the conclusion that defendant’s Miranda, rights were scrupulously honored otherwise, he could be requestioned about the same crime as the original interrogation pursued. [Citations.]”

Therefore, statements made as the result of requestioning the defendant on the same subject matter can be admissible. See also People v. Connell (1980), 91 Ill. App. 3d 326, 333, 414 N.E.2d 796.

Next, we consider the possibility that defendant was in actuality only questioned one time, and that was after he signed the waiver of rights form. While this possibility is not raised by the parties, the record does not make it clear that defendant was asked any questions about the crime he was charged with until after he signed the waiver of rights form. As such the requestioning problem would not exist.

We make these findings cognizant of the recent case of Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, in which the suppression of a post-arrest confession was required where a defendant had requested an attorney during the course of questioning, and was subsequently requestioned by different officers. We feel that Edwards is inapposite. In Edwards defendant repeatedly requested and clearly asserted his desire for counsel, unlike the case before us, where the defendant only refused to sign the waiver of rights form. We do not construe the refusal to sign a waiver of rights form as a specific request for an attorney.

A court must measure the voluntariness of a statement made after questioning is initially cut off by considering the totality of circumstances under which it was made, including the fact that defendant may have been subjected to illegal questioning earlier. (People v. Colley (1980), 83 Ill. App. 3d 834, 841, 404 N.E.2d 378.) It appears from the record in this case that the trial court did properly consider all of the circumstances under which defendant’s statement was made. We have concluded therefore that the trial court properly denied defendant’s motion to suppress statements.

The second contention of the defendant on appeal is that he was denied a fair trial as a result of the improper jury instruction regarding certain statements or admissions.

Both defendant and the State tendered versions of Illinois Pattern Jury Instructions, Criminal, No. 3.06 (1st ed. 1968) (hereinafter cited as IPI Criminal), and the State’s version was allowed. This version deleted a phrase which would have informed the jury that it was for them to decide whether the admissions were made. The committee notes following the instructions state that the phrase directing the jury to determine whether the defendant made the statements should be deleted only when the defendant admits making all the material statements attributed to him. IPI Criminal No. 3.06 (Committee Note).

If a court rules that a confession is voluntary and admits it into evidence, the defendant still has a right to present evidence to the jury which affects the credibility and weight to be given the confession. (People v. Cook (1965), 33 Ill. 2d 363, 369-70, 211 N.E.2d 374.) In Cook the court found that the defendant was entitled to an instruction which informed the jury that they might determine whether the defendant made any confession at all, and if so, to determine the weight and credibility to be given the confession. (33 Ill. 2d 363, 370.) Yet, in Cook the defendant had testified at trial. He denied taking part in the robbery, stated that he never admitted his guilt, and said that when questioned by police he denied taking part in the robbery and refused to sign a written statement admitting his participation in the robbery. (33 Ill. 2d 363, 367-68.) In the instant case the defendant did not take the stand at trial to specifically deny making a statement to the police, nor was there other evidence presented to the jury raising the question of whether he made the statements.

The main distinction between defendant’s situation and that in Cook was that the jury here was not aware of the possibility that defendant denied making the statement ascribed to him. At trial defendant neither admitted nor denied anything. It has been held that where a defendant offers no testimony to contradict that of the officers the trial court may, in its discretion, accept the officers testimony as true. People v. White (1974), 22 Ill. App. 3d 180, 184, 317 N.E.2d 323, aff'd (1975), 61 Ill. 2d 288, 335 N.E.2d 457.

Therefore it was not improper for the trial court to have made this deletion in the instruction under circumstances where defendant presented no evidence denying any admission. To allow otherwise would confuse the jury by making them decide an issue improperly before them. (People v. Bernette (1970), 45 Ill. 2d 227, 237, 258 N.E.2d 793.) If there was any error that may have resulted from deleting part of the instruction, it was harmless.

The State contends that defendant admitted to having made the statements in question during closing argument. We reject this argument and note that closing arguments are not evidence. R. Hunter, Trial Handbook for Illinois Lawyers §82:1, at 837 (4th ed. 1972).

For these reasons the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

LINDBERG and NASH, JJ., concur.


text:
      In re MARRIAGE OF CHARLES R. PARR, Petitioner-Appellee, and BETTY JOAN PARR, Respondent-Appellant.
    Second District
    No. 81-125
    Opinion filed December 29, 1981.

      Richard L. Horwitz and Gilbert X. Drendel, Jr., both of Drendel, Schanlaber, Horwitz and Oakes, of Aurora, for appellant.
    Peter K. Wilson, Jr., of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

In January of 1981, the appellant, Betty Joan Parr (Joan) and the appellee, Charles Parr (Charles) were granted a decree of dissolution of their marriage. The circuit court for the Sixteenth Judicial Circuit also entered an order which disposed of the parties’ marital and nonmarital assets, and granted Joan maintenance. Joan appeals, asserting that the property disposition was in error, and that the amount awarded as maintenance was inadequate.

The parties were married in October of 1968. For both parties it was a second marriage. At the time of the marriage, Joan owned a home referred to as the Second Street property. Charles was the beneficial owner of a home referred to as the 157 Ingleside property. Charles also held title to four oil and mineral leases, and owned approximately 1,940 shares of stock in the National Brush Company (National Brush) of which Charles was the president. Approximately 1,635 of these shares were purchased prior to the marriage. Charles was also personally liable for two outstanding loans. One loan for approximately $80,000 was owed to the Merchants Bank of Aurora. The other loan for $60,000 was owed to Charles’ mother.

■ From the time of the marriage and up until 1974, Joan’s Second Street property was rented out. The rental proceeds were placed in Joan’s personal bank account. During the marriage, both Joan and Charles managed their incomes and assets out of separate, personal bank accounts. There was only one joint account. The joint account was used to pay all household and personal expenses.

In 1973, Charles and Joan bought a $38,500 condominium in Florida. The parties took out a loan to make the downpayment. Title was taken in joint tenancy. In 1974, Joan sold the Second Street home for $25,000. Joan applied $14,000 of the proceeds to satisfy the loan for the condominium downpayment. The remaining $10,000 was deposited in her personal account. In 1975, Charles quitclaimed his interest in the condominium to Joan. The condominium was used by the Parrs and was also rented out to various parties, including National Brush. Joan collected the rental proceeds from the condominium and deposited them in her personal account. She also paid the mortgage and the expenses on the condominium out of her personal account. At the time of the trial, the stipulated appraised value of the condominium and its furnishings was $69,000.

Shortly before the marriage, Joan, who had previously worked for an ad agency, formed her own advertising agency, Integro Advertising (Integro). After the marriage, Integro was incorporated. Joan, the sole shareholder and employee, was paid a salary of $6,000 a year. This income was generally deposited in her personal account.

By 1971, Integro, Inc, had attained sufficient assets to make a downpayment on a three-unit apartment building, the Greene Court apartments. All financial transactions on the Greene Court apartments were handled out of an Integro, Inc., account. When Integro, Inc., was dissolved in 1978, title to the Green Court apartments was transferred to Joan, individually. Joan continued to collect the rents and pay expenses on the building out of a personal account. At the time of the trial, this apartment had an appraised value of $75,000 with an outstanding mortgage of $22,500.

In 1978, Charles borrowed an additional $132,407.46 from the Merchants Bank loan account to finance the purchase of a home referred to as the Southlawn residence. Charles became the holder of the beneficial interest in Southlawn. Joan and Charles moved from Charles’ Ingleside home into the Southlawn home. Shortly after they moved, the 157 Ingleside home was sold for $95,000. Most of the proceeds from this sale were used to reduce the indebtedness on the Merchants Bank loan. At the time of the trial on the property disposition, approximately $100 remained due on this Merchants Bank loan and $60,000 remained due on the note to Charles’ mother.

In early January of 1980, Charles moved into the Florida condominium. In March, he filed a petition for dissolution of marriage. In September of 1980, grounds for dissolution were established. After a trial to determine the disposition of property, the trial court entered an order finding that the parties had made a valid and binding agreement concerning the disposition of property. Pursuant to this agreement, the court found the following:

(1) The Southlawn property was awarded to Charles as a nonmarital asset.
(2) The shares of National Brush stock purchased prior to the marriage were nonmarital assets and awarded to Charles.
(3) A $10,000 note Charles received from the sale of the Ingleside property was a nonmarital asset awarded to Charles.
(4) The oil leases were nonmarital assets of Charles Parr.
(5) The Greene Court apartments were a nonmarital asset and awarded to Joan Parr.
(6) The Florida condominium was a nonmarital asset and awarded to Joan Parr.
(7) The following marital property was split 50/50: $12,000 in two checking accounts, a money market certificate for $15,000.
(8) The National Brush stock purchased after marriage was determined to be a marital asset. Sixty percent was awarded to Charles; forty to Joan.
(9) Charles was awarded a forty percent interest in a tax refund check for $900.
(10) Charles was awarded a $2,000 interest in a $10,000 certificate of deposit.
(11) Charles was ordered to pay Joan $5,000 as her interest in the furnishings and improvements on the Southlawn premises.
(12) Charles was ordered to pay Joan $4,700 in rent on the condominium.
(13) Charles was ordered to provide and maintain health insurance for Joan, and. to pay $1,700 a month in maintenance and $8,400 of Joan’s attorney’s fees.

In its order, the court further found that absent a valid and binding agreement and considering the relevant factors set out in paragraph 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503), the property should be divided in the same manner.

Initially, we will address Charles’ contention that Joan’s acceptance of benefits under the decree estops her from attacking the decree on appeal. It is well settled that a litigant cannot “attack a decree if, by reason of enjoying the benefits of the decree, the opposing party would be placed at a distinct disadvantage upon reversal.” (Adams v. Adams (1976), 44 Ill. App. 3d 656, 657.) Thus, the correct test for dismissal of an appeal involves two elements: (1) the appellant has accepted benefits from the decree and, (2) the appellee would be at a distinct disadvantage upon reversal. Lemon v. Lemon (1958), 14 Ill. 2d 15, 17-18; Hancox v. Hancox (1964), 54 Ill. App. 2d 476, 479-480.

It is apparent that the appellant has accepted some benefits under the decree. Among other benefits, she has accepted maintenance payments and has received health insurance coverage. However, section 413(a) of the Illinois Marriage and Dissolution of Marriage Act specifically states: “An order directing payment of money for support or maintenance of the spouse * * * shall not be suspended or the execution thereof stayed pending the appeal.” (Ill. Rev. Stat. 1979, ch. 40, par. 413(a).) Thus, Mrs. Parr’s acceptance of the maintenance benefits and health insurance coverage during the pendency of the appeal is specifically authorized by statute and does not affect her right to appeal.

Defendant contends that Joan Parr has accepted other benefits under the decree which are not in the nature of support or maintenance. She has received attorney’s fees and has collected rental proceeds on the property awarded to her under the decree. Mere acceptance of these benefits, however, is insufficient to invoke the doctrine of release of errors. (Lemon v. Lemon (1958), 14 Ill. 2d 15, 18.) The appellee must also show that the appellant’s acceptance of the benefits would place the appellee at a distinct disadvantage upon reversal.

Initially, we note that the disposition of property virtually left the parties in a status quo position. Both prior to the decree and after the decree Joan was collecting the rents on the properties and depositing the same in her account. There is no indication that Joan has even attempted to dispose of any of the assets awarded to her, and more than sufficient assets of the parties remain under the control of the court, so that, if necessary, the court can adequately accommodate the husband for any interest he may have lost in the rent receipts collected by the wife during the appeal and in the $8,400 in attorney’s fees. We, therefore, fail to see how the husband in this case has been distinctly disadvantaged. (Sullivan v. Sullivan (1979), 68 Ill. App. 3d 242, 247.) The circumstances of this case do not justify applying the release of errors doctrine to estop the appellant from attacking the decree.

We turn next to the initial issue raised by appellant. The appellant contends thát the trial court erred in finding that the parties had entered into an oral agreement which provided that upon dissolution of the marriage any property which a party separately managed during the marriage would be considered nonmarital property of that party regardless of whether it was acquired after marriage, or purchased with marital funds.

While it is clear that an oral agreement to settle property rights, if fairly made and in good faith, will be enforced (In re Marriage of Beck (1980), 83 Ill. App. 3d 976, 979), the burden of proving the existence of such an agreement rests upon the person who asserts the agreement (see Kuperman v. Leak (1974), 20 Ill. App. 3d 491, 495). The party who asserts the existence of a contract must establish it by clear, convincing and satisfactory evidence. (Northern Trust Co. v. Tarre (1980), 83 Ill. App. 3d 684, 689.) Moreover, binding and enforceable oral agreements cannot arise unless the terms of the alleged agreement are sufficiently definite and certain. Abrams v. Illinois College of Podiatric Medicine (1979), 77 Ill. App. 3d 471, 476.

In this case, the following evidence concerning an alleged oral agreement was adduced at trial. Charles Parr testified that before the marriage, he and Joan had discussed the possibility of an antenuptial agreement. At that time, the idea of a formal, written agreement was rejected. After they had been married approximately a year, the parties executed separate wills. In his will, Charles established a trust fund with a life income to Joan and he left his estate to his children. Joan’s will left everything to her children. Although Charles testified that on this occasion and on several other occasions they “discussed” keeping their assets separate and that he had previously “told” Joan that he intended to keep his assets, specifically the National Brush stock, separate, he did not testify that she agreed to these provisions. Charles contends, however, that Joan’s conduct in allowing the assets to remain separate was sufficient evidence of her assent to that agreement. Charles concludes and the trial court found that the conduct of the parties was sufficient to indicate the existence of an agreement to settle the property in the event of divorce or a death.

Overall, the conduct of the parties does indicate that the parties agreed to individually manage several of their assets. There is no evidence, however, that this agreement was intended to establish the rights of the parties in both their marital and nonmarital property upon the dissolution of their marriage. The Illinois Marriage and Dissolution of Marriage Act defines marital property only for the purpose of property division upon dissolution of the marriage and does not prevent individual ownership and management during the span of the marriage. See In re Marriage of Drennan (1981), 93 Ill. App. 3d 903, 906.

While Charles has introduced evidence that the parties orally agreed to individually manage various assets, he has failed to introduce evidence that this agreement was also intended to settle property rights upon dissolution of the marriage. Because the party asserting an oral contract has the burden of establishing that a contract existed and establishing the terms of that contract, the finding of the trial court that the parties had agreed to a property settlement is against the manifest weight of the evidence and is vacated.

Joan next contends that, absent a valid settlement agreement, the court made several errors in classifying specific assets of the parties as nonmarital property. We have examined the court’s findings as to whether the various assets were nonmarital and have determined that several errors were committed.

The 1635 shares of National Brush stock. The trial court found that these stocks, which were acquired before the marriage, were nonmarital assets of the husband. Joan contends, that because a $100,000 loan from Merchants Bank was incurred when the stock was purchased and because the remaining $80,000 due on the loan at the time of the marriage was paid off during the marriage, the stock is marital property.

Under section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)), the trial court must classify all property owned by the parties as either marital or nonmarital. It is clear that property cannot be both marital and nonmarital. See In re Komnick (1981), 84 Ill. 2d 89.

Under section 503(b) (Ill. Rev. Stat. 1979, ch. 40, par. 503(b)), there is an express preference for the classification of property as marital property. However, section 503(a)(1) through (6) .(Ill. Rev. Stat. 1979, ch. 40, pars. 503(a)(1) through 503(a)(6)) contains an exclusive list of property which is to be classified as nonmarital. (In re Marriage of Smith (1981), 86 Ill. 2d 518, 528.) This list of exceptions manifests the legislative intent to preserve the character of nonmarital property in those situations where the actions of the parties have not created ambiguity. 86 Ill. 2d 518, 530.

While subsection (6) of section 503(a) permits a spouse who has acquired property before the marriage to hold this property separate from the marriage partnership, as nonmarital (86 Ill. 2d 518, 530), the contribution of marital assets to a nonmarital asset creates a rebuttal presumption that the contribution was intended to change the charácter of the property to marital (86 Ill. 2d 518, 531). While the property may retain its nonmarital character, despite a contribution of marital funds, the contribution does not affect the burden of proof. The party asserting that the property is nonmarital has the burden of proving by convincing evidence that the property was not intended to become an asset of the marital partnership. See 86 Ill. 2d 518, 531-32.

Under section 503(a)(6) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(6)) the 1635 shares of National Brush stock is to be classified as nonmarital in that the stock was acquired before the marriage. However, during the marriage, Charles used marital assets to maintain and reduce the debt that was incurred when the stock was purchased and that was secured by the 1635 shares of stock. This contribution to the debt reduction, created a rebuttable presumption that Charles intended to treat the stock as a marital asset. (In re Marriage of Lee (1981), 87 Ill. 2d 64, 66.) Here, unlike Lee, Charles has rebutted that presumption. (See In re Marriage of Drennan (1981), 93 Ill. App. 3d 903.) Among other things, both Charles and Joan repeatedly testified that Charles intended to keep the stock separate, as a nonmarital asset. Therefore, the trial court’s finding that the stock was nonmarital is supported by the evidence and is affirmed.

We note that while the 1635 shares of stock remain nonmarital assets, the use of marital assets for the reduction of the debt on the nonmarital stock is to be considered when dividing the marital property. See In re Marriage of Smith (1981), 86 Ill. 2d 518, 531; In re Marriage of Drennan (1981), 93 Ill. App. 3d 903, 908.

Several other large assets were determined to be nonmarital assets: the Florida condominium, the Southlawn residence and the Greene Court apartments. These three assets, all of which were purchased after the marriage, are discussed below.

The Florida condominium. Unlike the stock, this asset was purchased after the marriage. Under section 503(a)(2), even if the property is acquired after the marriage, it may properly be characterized as nonmarital if it can be shown to be property “acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent.” (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(2).) Here, the Parrs obtained a loan in order to make the downpayment on the condominium. Several months later, the downpayment loan was paid in full with the proceeds from the sale of Joan’s nonmarital home, the Second Street property. From this evidence the trial court could have concluded that under section 503(a)(2) the condominium was nonmarital property. However, additional evidence indicates that the mortgage payments were made with commingled funds and title was taken in joint tenancy. Under Smith, a party who fails to segregate property acquired after marriage cannot claim that the property was acquired by a method described in section 503(a). In re Marriage of Smith (1981), 86 Ill. 2d 518, 530.

Moreover, even if the property could initially be classified as nonmarital under section 503(a)(2), the parties’ treatment of the condominium during the marriage would create a rebuttable presumption that the property was marital. (See In re Marriage of Rogers (1981), 85 Ill. 2d 217, 223.) The mortgage was paid out of Joan’s personal account which contained commingled funds. Title was taken in joint tenancy. Together Joan and Charles used the condominium. When Charles’ parents were in Florida, they stayed at the condominium. After the parties separated, Charles moved into the condominium.

Joan failed to introduce sufficient convincing evidence to rebut the presumption that the property was marital. The evidence which indicates that Joan handled the bookkeeping and was responsible for the management of the property is not sufficient to rebut the presumption that the property was marital. Similarly, Charles quitclaiming his interest in the condominium to Joan is insufficient to rebut the presumption, inasmuch as both parties testified that this was done primarily for business and tax purposes. In fact, at trial, Joan testified that the only asset that they agreed to keep “separate” was the National Brush stock. The overwhelming weight of the evidence indicates that the parties used and treated the condominium as a joint asset. Thus, in light of the preference toward classifying property as marital and Joan’s failure to segregate the property from other marital assets, the trial court erred in determining that the Florida condominum was nonmarital property.

The Southlawn residence. This property was purchased after the marriage; therefore, it is presumed marital. That presumption can be destroyed only by one of the six exceptions in section 503(a). Charles contends that under section 503(a) (2) the property is nonmarital in that the home was purchased in exchange for his nonmarital Ingleside property. Even if part of the purchase money could be traced to the Ingleside home, Charles has failed to trace the rest of the purchase price to a nonmarital source. When marital assets are commingled with nonmarital assets to purchase a marital home, the home is presumed to be marital property. (In re Marriage of Smith (1981), 86 Ill. 2d 518, 529.) Because Charles has failed to prove that this property was acquired under one of the exceptions in section 503(a), it is marital property, and the trial court erred in determining otherwise.

The Greene Court apartments. Absent a settlement agreement, this is clearly marital property. Two years after the marriage, Joan formed Integro, Inc. The Greene Court apartments became an asset of Integro, Inc. In 1978, when the corporation was dissolved, the Greene Court apartments were distributed to Joan as sole shareholder of Integro, Inc. As property acquired after the marriage, it is presumed a marital asset regardless of how the title is held. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 223.) That presumption can be destroyed only if one of the six conditions set out in section 503(a) is met. (Ill. Rev. Stat. 1979, ch. 40, pars. 503(a)(1) through 503(a)(6).) This property was not acquired under any of those conditions. Therefore, the trial court erred in finding the apartments to be nonmarital.

Because of the foregoing errors, the trial court’s disposition of property of the parties is vacated, and the cause is remanded for redistribution of the marital assets under the guidelines of section 503(c). We have likewise determined that because allocation of maintenance under section 504 of the-Act requires the court to consider the amount of marital property awarded, and because the determination of attorneys’ fees under section 508 requires the court to consider the financial resources of the parties, it is necessary that we also.vacate the allowance of maintenance and attorneys’ fees and remand for a redetermination of the same.

Reversed and remanded.

REINHARD and UNVERZAGT, JJ., concur.