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Katz v. Anderson

MAY 19, 1964.

BEN M. KATZ, APPELLANT,

v.

WALTER S. ANDERSON AND HELEN S. ANDERSON, APPELLEES.



Appeal from the Circuit Court of Rock Island County; the Hon. GEORGE O. HEBEL, Judge, presiding. Reversed and remanded.

ROETH, J.

Plaintiff commenced a suit for specific performance to compel defendants to convey to him Lots 6, 7, 8, 9 and 10 in Block 198 in Park Addition to East Moline, pursuant to a written agreement to purchase. The following plat shows the location of the lots above:

The agreement to purchase is dated July 19, 1961, and is signed by the plaintiff and by Robert C. Austin (a realtor) as agent for defendant Walter Anderson. The record shows that the City of East Moline had an easement for street purposes on what is shown on the plat as 10th Place. The street had never been opened

and subsequent to the signing of the above agreement, defendants commenced negotiations with the City to officially vacate 10th Place. This vacation was accomplished on August 21, 1961. A controversy then arose between plaintiff and defendants as to whether or not the one half of 10th Place bordering on Lots 6, 7 and 8 inured to the benefit of these lots. Defendants own land on the east side of 10th Place across from Lots 6, 7 and 8. They claim it was the intention of the parties to exclude any portion of 10th Place and to retain title in defendants to the entire vacated portion of 10th Place.

After this suit was commenced the parties entered into a stipulation under which defendants conveyed the lots in question to plaintiff, reserving the question of title to 10th Place for court hearing. On hearing the court found the issues for the defendants and entered an appropriate decree. This appeal by plaintiff followed.

Certain facts shown by the record are important. Defendant Walter Anderson originally owned some 20 lots in Park Addition. In July, 1956, defendant Anderson wrote William De Taeye of the real estate firm of Austin & De Taeye advising him that he wanted to sell these 20 lots and that he, De Taeye, had been recommended as a "young live wire in the real estate game." Defendant's letter described the lots by number and also advised that De Taeye was to have an exclusive listing and that defendant had employed an engineering firm to resubdivide the 20 lots into 9 lots. In the letter reference is made to 10th Place as follows:

"Since lot 5 and 4 are owned by Joseph G. Carpentier who lives on lot 4 and whose neighbor to the west do not want the street, platted as 10th Place, to be used we can resubdivide with the idea of using the street and have the council vacate it."

While subsequent correspondence between defendant Anderson and his realtors reflects inquiry from time to time over the progress of the vacation of 10th Place, it was not until August 1961 (after the purchase agreement had been signed) that Anderson specifically indicated that he expected the title to the whole of 10th Place would revert to him and that plaintiff was not to have any title to any portion of it. The plaintiff testified that in his negotiations with the realtors nothing was said about the possibility of the City vacating 10th Place and that it was not until after the vacation had become an accomplished fact did he learn that defendants claimed title to the whole of 10th Place. In this he is corroborated by the real estate agents of defendants. Prior to the sale of the 5 lots to plaintiff, Austin and De Taeye sold two other lots for defendant and the transaction was completed. As heretofore noted on July 19, 1961, plaintiff signed the agreement to purchase the 5 lots. This agreement to purchase is on a standard form. It does not contain any exclusion of any part of 10th Place in the event that street should be vacated. Under the signature of plaintiff appears the following:

"The undersigned accepts this offer to purchase as outlined above hereof and agrees to make conveyance, and also agrees to recognize Austin-De Taeye Agency as the procuring cause of this sale and agrees to pay a 5% commission on the entire sales price.

Accepted this 19th day of July, 1961.

Owner /s/ Robert C. Austin for Walter Anderson

Phone ____"

Plaintiff paid $1,000 as earnest money and went into possession of the lots. Austin and De Taeye notified defendant Anderson of this action and on July 23, 1961, defendant Anderson wrote them in part as follows:

"Congratulations to you both on the sale of the lots in Block 198. Now that these lots will have two duplexes on them the ice will be broken and ...


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