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Jader v. Costello

OPINION FILED JANUARY 18, 1950.

ANTON FRANK JADER ET AL., APPELLANTS,

v.

JOHN P. COSTELLO, APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:

This is a suit in equity in the circuit court of Cook County, seeking specific performance of an option contained in a written lease for the sale of real estate located at 5014 and 5016 Broadway, in the city of Chicago.

On December 1, 1942, Margaret K. Brown, Nora M. Pockett and Mabel E. Stark, were the owners in fee simple of the premises, and leased the same to the appellants for the period from December 1, 1942, to December 1, 1947. The lease contained an option whereby the lessors agreed to sell the property to the appellants for the sum of $4,000.

The case was referred to a master in chancery, who recommended the entry of a decree dismissing the complaint for want of equity. After objections and exceptions to the master's report were overruled, the court entered a decree dismissing the appellants' complaint for want of equity. Because a freehold is involved, the appeal is directed to this court.

The premises were rented for the sole purposes of a laundry and an apartment, at a rental of $100 a month, payable in advance on the first day of each month.

The pertinent provisions of the lease are the following:

"13. The Lessees, their heirs, and assigns, are given the right and option to purchase said premises at any time prior to October 30, 1947, for the sum of Four Thousand Dollars ($4,000.00) cash, subject to all unpaid general taxes, penalties and interest, unpaid special assessments, penalties and interest, easements and party wall agreements of record, if any, liens, leases or defaults caused by Lessees or their agents, heirs, or assigns. If within the time above specified, the said Lessees, their heirs, or assigns, shall declare in writing their intention to exercise said option or right to purchase, they shall be allowed the further time of one year (but not beyond the term of this lease) to effect at their own expense, a settlement, compromise, or adjustment of the general real estate taxes levied and unpaid against said premises, by adjudication, tax forfeiture foreclosure or otherwise. Lessors shall at the request of the Lessees, in event notice of intention to exercise the option is given, deposit a deed to the premises in escrow with the Chicago Title and Trust Company, conditioned for delivery upon payment of the purchase price herein provided after said general taxes have been compromised."

"15-A. This lease and all rights and obligations of the parties thereto, including the option to purchase therein contained, shall, at the option of the Lessors, be cancelled in the event of any tax foreclosure, appointment of any tax receiver, or any action taken by any state, county, or other public official on account of present or future tax or special assessment delinquency. There shall be no liability on the part of the Lessors for the termination of this lease or on account of their failure or inability to perform any of the terms or provisions thereof in the event of any action taken with respect to present or future tax or special assessment delinquency."

The appellants entered into possession of the premises under the lease and have been in possession since that time.

On November 1, 1945, the lessors above named conveyed the premises to the appellee, John P. Costello, by deed which recited that the conveyance was subject to the terms of an existing lease between the lessors and the plaintiffs. The deed was duly recorded March 15, 1946.

On June 4, 1946, the appellant-lessees notified the defendant-appellee by registered mail that they were exercising their option to purchase the property in accordance with the terms of the said lease. On June 11, 1946, the appellants again notified the defendant by personally serving upon him a written notice stating that they were ready, willing and able to complete the purchase of the premises in accordance with the terms of the lease at any time.

On June 7, 1946, three days after receiving the first notice of the appellants' intention to exercise their option to purchase, the appellee mailed to the appellants a letter stating the following:

"You are hereby notified and advised that a tax receiver has heretofore been appointed for the property legally described as: [legal description.]

"Aforesaid property being the property described in your lease dated December 1, 1942, executed by Nora M. Pockett, Mabel E. Stark and Anton Frank Jader and Estelle Josephine Jader.

"Said tax receiver was appointed prior to June 4, 1946. Consequently I wish to advise you that aforementioned lease, together with all rights and obligations including the option to ...


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