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Blackert v. Dugosh

OPINION FILED SEPTEMBER 20, 1957

FLORENCE I. BLACKERT, APPELLEE,

v.

LAWRENCE DUGOSH ET AL., APPELLANTS.



APPEAL from the Circuit Court of Henry County; the Hon. DAN H. McNEAL, Judge, presiding.

MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 19, 1957.

The plaintiff, Florence I. Blackert, filed suit in the circuit court of Henry County to set aside three deeds to a 1/2-acre tract, originally conveyed for school purposes, as a cloud upon her title. The defendants, Howard and Helen E. Rhoades and Lawrence Dugosh, appeal to this court from a decree canceling the deeds. A freehold is involved.

The first of such deeds was from Lyman Stowell, the then owner of the whole east 1/2 of the northeast 1/4 of section 9, township 18 north, range 5 east, to the school directors of District No. I and their successors in office "so long as said lot is used for school purposes." It was dated November 3, 1858, was filed for record in 1881 and contained the following description: "One-half acre of land in the East side of the East half of the Northeast Quarter (1/4) of Section Nine (9) in Township Eighteen (18) North, and of Range Five (5) East. Commencing sixty-three rods from the Northeast corner of said lot and running West eight rods; thence South ten rods; thence East eight rods; thence North ten rods to the place of beginning, located in Henry County, Illinois."

The second deed, dated September 10, 1953, and filed for record March 8, 1954, was from the township school trustees to the defendant Dugosh, with a land description identical with the first. The third deed, dated March 20, 1954, and filed for record March 23, 1954, was from Dugosh to the defendants Howard Rhoades and Helen E. Rhoades. The description in the latter deed commenced at a point on the east line of the northeast 1/4, 63 rods south of the northeast corner thereof, and then continued with the same metes and bounds description as the first two deeds.

The plaintiff claims ownership of the whole of said east 1/2 of the northeast 1/4 from the original owner, Stowell, by mesne conveyances, none of which excepted the school tract. Her complaint was amended, before judgment, by adding an alternative allegation that the Stowell deed created a mere easement and that the two subsequent deeds were ineffective since the trustees had no interest to convey. She also added count 11 praying for ejectment.

The trial court entered a decree canceling the deeds, dismissed the counterclaim of the Rhoadeses for injunctive relief, gave the defendants 30 days to remove the schoolhouse and outbuildings and assessed the costs against the defendants.

While we have grave doubts as to the right of the plaintiff to maintain this action at all, first, because of her lack of legal possession of the 1/2-acre tract and, second, because a possibility of reverter is not alienable, we think the case should be decided on grounds which afford defendants affirmative relief.

The real question is the intention of the parties as expressed in the first two deeds. An examination of the Stowell deed clearly places the school tract in the east 1/2 of the northeast 1/4 by the use of the words "in the east side." The same words are strongly indicative of an intent to convey a tract abutting on the east line whether the preposition was "in," as here, or "on" or "along." This construction of intent seems most reasonable since the tract would have been useless for a school unless it was accessible. According to plaintiff's own pleading, Stowell owned the fee to the whole east 1/2 of the northeast 1/4, and said land was alleged to have become hers by mesne conveyances unburdened by any encumbrance. The complaint thus nullifies the possibility of the existence of a right of way for ingress to and egress from the school tract. We think it the evident intention of the parties that the school tract was to abut on the east line.

The next question is whether the deed fixes a point in the east line from which to commence the metes and bounds description. The point of beginning is stated to be "63 rods from the northeast corner of said lot." Plaintiff contends that the word "lot" refers to the 1/2-acre lot. Obviously that is impossible since the 1/2-acre is only 10 rods by 8 rods. A more reasonable construction is that the words "said lot" refer to the larger tract from which the 1/2-acre tract was being carved. This may be likened to the use of descriptive words of the parent tract such as "said 80" or "said 1/4 section." The absence of direction from the northeast corner leaves no problem. Since, as we interpret the deed, the school tract abuts on the east line, the point of beginning must necessarily be 63 rods south of the northeast corner of the larger tract.

What we have just said with respect to the Stowell deed applies equally to the trustees' deed. The deed to the defendants Rhoades describes the tract in accordance with our interpretation of the intention of the parties to the other two deeds.

It is true, as contended by plaintiff, that where a description contains a patent ambiguity or one which appears on the face of the instrument itself, the uncertainty in the description cannot be cured by extrinsic evidence. (Weber v. Adler, 311 Ill. 547; Higinbotham v. Blair, 308 Ill. 568.) As above indicated we find the description ascertainable from the deed; therefore no patent ambiguity exists.

The extrinsic evidence confirms our interpretation of the intention of the parties. The plaintiff, who lived in sight of the schoolhouse for many years and sent her children to school there, testified that it had been fenced she first knew it in 1913. No witness testified that the school tract in use over the years was located at any other place than as described in the Rhoades deed, nor was any evidence adduced that the location of the school was ever changed. A land surveyor testified that he was able to locate the tract from the deed and that he found its location to substantially coincide with the description in the last deed.

It is contended that since the facts were determined by the chancellor, they should not be reviewed here. The point is without merit since the primary question is answered by the ...


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