APPEAL from the Circuit Court of Peoria County; the Hon.
HOWARD WHITE, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 16, 1957.
This is an appeal from the circuit court of Peoria County, which dismissed the plaintiffs' suit for specific performance.
The plaintiffs, Mr. and Mrs. John E. Manias, and the defendants, Mr. and Mrs. John F. Yeck, own adjoining property in Peoria. The plaintiffs contend that in June of 1950 they contracted orally with the defendants, promising to convey to them a strip of land 6 feet by 110 feet and pay $100 in exchange for a 10-foot by 37-foot strip. Alleging part performance, they asked specific performance and other relief. The defendants resisted the suit, denying the existence of any such contract. A hearing was held before a master who found for the defendants. The circuit court approved the master's findings, and this appeal followed.
The principal issue is over the existence of the contract. If this be decided in the affirmative there are additional questions to be considered.
The defendants' property is 37 feet, north and south, by 110 feet, east and west. The plaintiffs' land (300 feet by 150 feet) adjoins it on the south and west. Near the west end of defendants' tract is a garage, the west wall being about 12 1/2 feet east of the property line. The plaintiffs have a garage located just to the west of this. Prior to construction hereafter mentioned, this garage was situated on the plaintiffs' property up next to the lot line, leaving about 12 1/2 feet between the two structures. The defendants' garage was for their own personal use; the plaintiffs' garage serviced tenants residing in apartment houses located on their property.
In 1941, John Manias and John Yeck made an oral agreement regarding the use of a 10-foot by 37-foot strip lying between the garages. It was agreed that the plaintiffs could use this strip in return for permission to the defendants to use a strip of land 5 feet by 110 feet which lay adjacent to the south edge of the defendants' property. They reduced this agreement to writing in 1946 by a paper entitled "Rental Agreement." Stipulated rent was $1 per year, and either party could cancel by giving 30 days' notice. Pursuant to this agreement, the plaintiffs paved the 10-foot by 37-foot strip, and the defendants planted trees, etc., on the 5-foot by 110-foot strip.
There is a dispute as to some of the events which occurred in 1950. John Manias testified that in June of 1950 he had a conversation with John Yeck at which Charles Parker (Manias's son-in-law) was present. He told Yeck that if he (Manias) had 7 1/2 feet or probably 8 feet more ground he would be able to have a five-stall garage. Accordingly, he proposed to Yeck that he would deed him a strip 6 feet by 110 feet (located along the south line of Yeck's property and already used by him) and pay him $100 in exchange for 10 feet off the west end of Yeck's property (i.e., a strip ten feet by 37 feet). He said Yeck readily agreed to this, saying he had no use for that property anyway. Mention was also made of a 5-foot passageway that would remain between the two garages, and it was agreed that each party was to have an easement in that strip. Charles Parker corroborated the plaintiff on this. However, John Yeck denied that he made any agreement to this effect. John Yeck, Jr., his son, testified that he was present at a conversation between Manias and his father during the summer of 1950 at which Yeck protested to Manias about the latter building his garage over the line. According to this witness, Manias said he would tear it down anytime Yeck wanted him to and then offered to buy the land. But Yeck refused to sell.
It is uncontradicted that Parker began work on the garage in June, 1950, and by working afternoons was able to complete it by September. And during that time, Yeck himself testified he never made any protest. Parker said Yeck was out to see him almost daily, and sometimes would offer a suggestion on the work. As constructed, the building extended 7 1/2 feet across the property line.
Walter W. Winget, a Peoria attorney, testified that Manias contacted him in the summer of 1950 about an exchange-of-real-estate deal he had with Yeck. The witness said he examined the premises in company of both Manias and Yeck and verified the agreement with Yeck. His description of the alleged contract was identical with that related by Manias. While talking with Yeck, he asked to examine the latter's abstract. Yeck obliged, but when Winget asked if he could take the abstract with him, Yeck refused. Winget said that in view of the circumstances it would be well to have a survey made, and afterward he commenced negotiations with Manias's mortgagee regarding the release of the 6-foot by 110-foot strip from the mortgage. Yeck denied he acknowledged the existence of the agreement to attorney Winget. According to him, when Winget came to his house, he (Yeck) did not have the slightest notion what he was there for, nor did Winget explain his mission. Rather, Winget told him he did not have good title and asked to see his abstract. Yeck told Winget to get out, thinking the latter was a "stranger" trying "to steal my abstract." Mrs. Yeck testified that she overheard her husband shout at Winget to leave.
In September of 1950, Robert Herweg, a civil engineer, came upon the premises at the direction of Manias to make a survey and used Yeck's abstract in making it. At one point, he said, Yeck stated with reference to the 6-foot by 110-foot strip that it was the property Manias was giving him. Herweg prepared a plat, introduced as an exhibit in this record, and it shows a lay-out of the properties involved. It bears the date of September 15, 1950, and no objection is made regarding its authenticity. The 6-foot by 110-foot strip is labelled "6.0' X 110.0' Area to be deeded to Yeck." The 10-foot by 37-foot strip is marked "37.0' x 10.0' Area to be deeded to Manias"; and respecting the 5-foot passageway the plat stated "2.5' X 43.0' area on each side of new property line to be given to both Yeck and Manias for a 99-year period as an easement for passage way purposes."
Yeck acknowledged that he talked with Herweg when the latter was making the survey. He admits that he saw the plat a few days after September 15, 1950. "I saw it within a week after. I think the surveyor man showed it to me. We did not have a conversation about it. Maybe he pointed out where the two strips were, I am not sure." But Yeck denied that the survey was made and the plat shown to him in connection with an agreement between him and Manias for the conveyance of those two strips of property. Rather, he said, "I don't know why the plat was shown to me."
In October of 1950, Manias gave Yeck a check for $100, which he said was the money consideration due under the agreement. Yeck admits he cashed the check and used the proceeds, but he denies that it was paid pursuant to any contract. He said the payment was for "good will." His wife said Manias told her it was for "privileges taken and damages."
For the most part the record is silent regarding 1951. Virtually the only testimony bearing on this period is that of attorney Winget, who said he continued his negotiations with Manias's mortgagee regarding a release of the mortgage, and in August of that year prepared warranty deeds designed to effectuate the contemplated transfers. These documents were introduced in this record. It is ...