APPEAL from the Circuit Court of Peoria County; the Hon. JOHN
T. CULBERTSON, JR., Judge, presiding.
A decree of the circuit court of Peoria County ordered the reformation of a deed and the reformation and specific performance of two contracts for deed. From this decree, the defendant, Atha B. Heinz, prosecutes a direct appeal, a freehold being necessarily involved.
Three contiguous parcels of rural real estate, consisting of approximately one acre each, are involved. A public road forms the eastern boundary of each tract of land. Plaintiffs are the six owners and contract purchasers of the parcels, and the mortgagee of one of them. Virgil E. and Leona J. Whetstone are the contract purchasers of the northernmost tract, Carl and Reaka Schmitt are the owners of the middle tract, and Fred and Anna Fisher are the contract purchasers of the southernmost tract. In 1939, the defendant, Mrs. Heinz and her then husband, John A. McLaughlan, owned approximately 27.32 acres of land in Peoria County lying west of the center line of a public road known as State Aid Route No. 18, excepting therefrom certain coal and mineral rights underlying the land. In that year the plaintiffs Schmitt occupied the dwelling house on the land as tenants of defendant and her husband. The Schmitts testified that in July or August of 1939, they had conversations with defendant concerning the purchase of an acre of land for $200, payable at the rate of $10 down and $1 per week until the sum of $100 had been paid, at which time they were to receive a contract for deed, and, upon the payment of the balance of $100, they were to receive a warranty deed. These plaintiffs testified, further, that they inquired of defendant as to the size of an acre and were informed by her that 120 feet by 365 feet would make one acre. On this point, defendant testified that she agreed to sell the Schmitts not an acre, but only a tract 120 feet along the road by 365 feet deep because lots in the neighboring village of Kickapoo, 60 feet wide, were selling for $100 each and that she arrived at the sale price in this manner. The site of the land to be purchased by the Schmitts was selected as that portion lying immediately north of a line fence on the land which intersected the right-of-way line of the public road at an angle of 56° 43'. The Schmitts immediately paid the down payment and, after the crops were cleared from the land, defendant and her husband assisted them in digging their basement. When the basement was completed in September of 1939, the Schmitts moved from the farm house into the basement.
The following month, McLaughlan and Schmitt started to measure off the property in order to erect fences. In so doing they encountered difficulty in attempting to determine the size of an acre since the line fence, which was the south line of the property, intersected the road at an angle. They then solicited the aid of Willis Felton, a former school teacher. Under his guidance a north line was established by measuring at right angle from the fence a distance of 120 feet. The north line was then extended to the road and measurements were made westerly from the road along the north and south lines a distance of 365 feet in order to establish the depth. At this juncture, defendant arrived on the scene and protested the amount of frontage being taken but said she did not care about the back. The frontage was shortened by some ten feet and an area was then fenced having a frontage of 128 feet, a south line of 352.6 feet, a west line of 139.4 feet and a north line of 360.5 feet. The premises have been occupied by the plaintiffs Schmitt from that time until this action was instituted on October 2, 1952.
Subsequently, on August 8, 1940, the Schmitts, the defendant and her husband executed an agreement for the purchase of premises described as having a frontage of 120 feet on the road and a depth of 365 feet with the north and south lines meeting the westerly line of the road at an angle of 56° 43'. Thereafter, on June 3, 1942, the balance of the purchase price having been paid in full, defendant and her husband executed a warranty deed conveying to the Schmitts property as described in the agreement.
In December of 1948, defendant obtained a divorce from her husband and resumed her former name of Atha B. Heinz. As a part of a property settlement, she obtained title to the 27.32 acres, subject to outstanding coal and mineral rights and the rights of the plaintiffs Schmitt.
On October 1, 1951, the plaintiffs Whetstone signed an agreement with defendant for the installment purchase of a parcel of land lying north of the Schmitt tract. This tract was also described by metes and bounds, with a frontage of 130 feet along the road and the north line of the Schmitt tract being its southern boundary. Included in this purchase was a house located on defendant's property which was to be moved onto the premises being purchased. There is no dispute concerning the dimensions of the Whetstone land. In this instance, the agreement was signed before delivery of possession, and, at the time of the proceedings in the trial court, the Whetstones were still making monthly payments in accordance with the terms of the contract so that the agreement remained unperformed insofar as final payment and delivery of deed were concerned.
Finally, in May, 1952, the plaintiffs Fisher contacted defendant for the purpose of purchasing an acre of ground upon which to build a residence. They were shown the property immediately south of the Schmitt tract. Their testimony is to the effect that defendant advised them 130 feet frontage by 350 feet depth would make an acre, and that they accepted her statement as true. The Fishers orally agreed to take the land, whereupon they made a down payment and, shortly thereafter, moved into a trailer they had placed on the land as a temporary residence. On May 14, 1952, the Fishers signed a contract for the installment purchase of land described as having a frontage of 120 feet and a depth of 350 feet and adjoining the Schmitt tract on the south. The contract was read to them. They did not receive a copy. The plaintiffs Fisher then purchased building blocks and fence posts and in June, 1952, employed a surveyor to locate their lot lines so that they might erect a fence. They informed the surveyor they were to have a one-acre tract with a frontage of 130 feet on the road. Defendant, however, furnished the surveyor with a copy of the contract describing the property as 120 feet by 350 feet. These dimensions, the surveyor testified, would yield considerably less than an acre. The Fisher tract was the only one of the properties in question which was unfenced at the time of the commencement of this action. The Fishers testified that they had made all monthly payments required of them prior to the time of the hearing, and that they were ready, willing and able to complete the payments due under the contract.
Subsequently, it was discovered by survey that the descriptions contained in the deed and the two contracts of purchase located the three properties in question approximately one space or tract north of where each was intended to be located. As part of this summary of the facts, it must be noted that a frontage of 120 feet on the public highway would produce a width of only 100.3 feet measured perpendicular to the north and south lot lines of the Fisher tract, and, further, that there existed a county zoning ordinance to the effect that no building shall be constructed within fifty feet of the lot lines.
The pleadings consist of a complaint, answer and reply. In addition to praying for the reformation of the three instruments in order that they might correctly describe the premises intended to have been included therein and for the specific performance of the Whetstone and Fisher contracts as reformed, the complaint also asked that defendant be ordered to sign a zoning variance waiver and consent for the plaintiffs Fisher and for money damages against the defendant on behalf of all plaintiffs. By her answer, defendant admitted that the descriptions contained in the three instruments mistakenly located the properties in question, but she averred that the length and directions of the lines as described in the instruments should be controlling as to the quantity of land intended to be sold. She therefore prayed that reformation be granted accordingly. She also asked for reasonable compensation from the plaintiffs Schmitt and Fisher, should reformation be granted, for the frontage occupied by them, and for judgment against the Whetstones for $100, a sum representing one half the cost of moving the house onto the premises sold to them. The reply denied the various factual and affirmative allegations of the defendant.
The chancellor, confirming the master's report, adjudged the equities were with plaintiffs and ordered that the Schmitts reconvey to defendant the premises described in their warranty deed; that their mortgagee execute its release deed therefor; that defendant convey to the Schmitts her deed for the property as improved and occupied by them; that the Schmitts execute and deliver a new mortgage to the mortgagee; that the Whetstones pay to the defendant any balance remaining due on their contract for deed; that, thereafter, defendant convey to them the premises as improved and occupied by them; that the Fishers pay any balance remaining due on their contract for deed; that, thereafter, defendant convey to them premises described as having a frontage of 130 feet and distances along the north and south lines of 400.81 feet; that the defendant execute and deliver to the Fishers her written consent or waiver to a zoning variance; and that all costs be taxed against defendant.
Defendant contends that the circuit court erred (1) in finding that the parties had agreed on an acre of land as the quantity to be sold to the Schmitts and to the Fishers, (2) in ordering her to execute and deliver her written consent to a zoning variance in favor of the Fishers, and (3) in finding that the Whetstones were responsible for only one half the cost of moving the house onto the Whetstone tract.
The law applicable to cases involving reformation for reasons of mistake is basic and well established. Since Worden v. Williams, 24 Ill. 67, this court has held that it is within the jurisdiction and is the duty of courts of equity to correct mistakes in conveyances by reformation. To reform an instrument upon the ground of mistake, the mistake must be of fact and not of law, mutual and common to both parties, and in existence at the time of the execution of the instrument, showing that at such time the parties intended to say a certain thing and, by mistake, expressed another. Before a deed will be reformed, satisfactory evidence of mistake must be presented, leaving no reasonable doubt as to the mutual intention of the parties, a mere preponderance of the evidence being insufficient. (David v. Schiltz, 415 Ill. 545; Spies v. De Mayo, 396 Ill. 255; Ambarann Corp. v. Old Ben Coal Corp. 395 Ill. 154; Harley v. Magnolia Petroleum Co. 378 Ill. 19; Korosic v. Pearson, 377 Ill. 413; Tope v. Tope, 370 Ill. 187.) In an action to reform a written instrument, parol evidence is admissible to show a mistake, and the Statute of Frauds is not applied in such cases to exclude oral testimony. Darst v. Lang, 367 Ill. 119; Mercantile Ins. Co. v. Jaynes, 87 Ill. 199.
As to the Schmitt controversy, the evidence discloses that defendant and her husband assisted the Schmitts in locating their house on the land, helped them in digging their basement, and defendant's husband was on hand to aid in erecting the fence. The fence as erected in October, 1939, has remained unchanged without protest until a mistake was discovered in 1952 in the description in the deed. During this entire period the Schmitts have exercised dominion over the land without objection on the part of defendant. While there is some dispute as to the quantity of land intended to be conveyed, we take cognizance of the fact that there are 43,560 square feet in an acre and that a depth of 365 feet is the nearest multiple of five feet in length required to produce the necessary square feet for an acre when multiplied by a width of 120 feet. Defendant testified as to the manner in which she arrived at the price for the Schmitt property, but no explanation is made as to the manner in which she arrived at a depth of 365 feet. The only logical conclusion is that she was attempting to sell an acre of land. When measurements were made, however, to plot the acre on the north side of a fence which met the public road at an angle of 56° 43', it became apparent that a frontage of more than 120 feet was necessary to yield an acre. When a post was being set along the road to establish the north line, the Schmitts credit defendant with stating that she would rather have them take more land off the back than to take so much footage along the highway. This statement is in accord with her intention to sell the Schmitts one acre. At any rate, defendant's husband, who was one of the grantors, testified that the land as fenced was the land intended to ...