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Rogowski v. Nelson

JUNE 26, 1970.

JAN ROGOWSKI AND ANIELA ROGOWSKI, HIS WIFE, PLAINTIFFS-APPELLEES,

v.

HOWARD A. NELSON AND STELLA NELSON, HIS WIFE, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding. Affirmed.

TRAPP, J.

Defendants appeal from a decree of the Circuit Court granting specific performance of a contract to purchase real estate and ordering defendants, herein designated "sellers," to convey the property, which they occupied as a residence, to the plaintiffs, herein designated "buyers."

Sellers contend:

(1) That the trial court reformed the contract by requiring insertion of a release and waiver of homestead without any pleadings seeking reformation or any evidence to support reformation.

(2) That the court ignored the affirmative defense of homestead which was admitted by the pleadings.

(3) That buyers failed to comply with the terms of the contract in that:

(a) there was no tender of the purchase price in proper form;

(b) there was no tender of the correct amount of the purchase price;

(c) there was failure to give notice of a closing date as provided by the contract; and

(d) there was a failure to supply sellers with buyers' mortgage commitment required by the contract.

(4) That the court ignored a binding order entered by a previous trial judge that a homestead existed.

(5) That an estate of homestead can be extinguished only in the manner provided by statute, that is, by specific waiver in writing acknowledged in the manner provided for acknowledgment of deeds, as required by chapter 52, § 4 and chapter 30, § 26, Ill Rev Stats 1965.

The evidence before the court included the testimony of the buyers and the participating real estate agent, as well as documentary exhibits. The sellers did not cross-examine any of the ...


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