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Biren v. Kluver

OPINION FILED FEBRUARY 6, 1976.

EDWARD N. BIREN ET AL., PLAINTIFFS-APPELLANTS,

v.

HOWARD H. KLUVER ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Jo Daviess County; the Hon. JOHN W. RAPP, JR., Judge, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Plaintiffs sued to reform and correct an agreement for a warranty deed. They allege that the agreement was to sell a 120-acre tract to the defendants, Howard H. Kluver and E.R. Jacobs, for $100 per acre but that by mistake the description included substantially more acreage. The property was part of the larger farm owned by the plaintiffs, a portion of which had been previously sold to the defendants, Meyer J. Barrash and Annette M. Barrash. *fn1

Following a bench trial the court decreed that the agreement be reformed to evidence the sale of tract one as finally determined at $100 per acre. The plaintiffs moved to modify the decree and for a rehearing, which motion the court denied. Plaintiffs appeal, contending that the evidence clearly established that they were mistaken as to the amount of acreage in tract one which the parties viewed, but that it was understood that it was to be no more than a 120-acre tract. They further contend that the defendants were guilty of fraud in that they knew that the tract contained substantially more than 120 acres. Plaintiffs seek to have the agreement reformed so as to cancel the sale of tract one to the extent it exceeds 120 acres.

The defendants Kluver and Jacobs have not filed a brief. However, we have exercised our discretion to review the case on its merits.

The complaint to reform and correct the agreement for warranty deed as to tract one in substance alleged that plaintiffs had orally agreed to sell 120 acres of land at $100 an acre, the total purchase price being $12,000, the exact legal description to be determined by survey; that thereafter a written agreement for warranty deed dated February 26, 1966, was executed but contained an incorrect legal description which included substantially more than 120 acres; and that a survey of the 120 acres of woodland which plaintiffs had agreed to sell was described and attached as an exhibit. The complaint prayed that the agreement be reformed to show the legal description in the corrected survey and that the plaintiffs be authorized to execute a proper warranty deed pursuant to the agreement to be corrected and reformed.

Defendants answered the complaint, denying that there had been any agreement for the sale or purchase of land at a per acre price. They stated that the agreed purchase price was $12,000 for the entire tract as described in the agreement for the warranty deed, and prayed for specific performance of the articles of agreement.

The plaintiff, Edward N. Biren, who was a farmer in his late seventies, testified that he had listed the tract in question with a realtor named Bauer; that Bauer brought Kluver and Jacobs to him at the farm and that the purchasers walked over the piece of real estate that was to be sold by themselves; that Biren told them that he didn't know what was in there but he only wanted to sell 120 acres. On adverse examination Edward Biren testified that he had described the land in question with the phrase "[B]oys, you are buying all the woods across the road." He said he did not walk the boundaries of the "wood lot west of the Galena-Blanding Road" with the purchasers, but said that they did. His eyesight was too poor to see the description in the articles of agreement.

Anna Biren, his wife, testified that her husband had told the purchasers that he only wanted to sell 120 acres.

Robert Bauer, the realtor, testified that in his discussions with Mr. Biren they were talking about selling 120 acres of wooded land; that Biren showed the land he wanted to sell to the purchasers by pointing and saying that it did not include any tillable ground but merely rough ground or wooded area and that it was wooded land west of Blanding Road.

James Richardson, the attorney for the Birens in connection with the sale, testified that he prepared the articles of agreement with the assistance of Kluver and Jacobs as to the description. He testified that Biren said he was selling 120 acres of woodland for $100 an acre. Defendant, Howard Kluver, testified that the property to be sold was the woodland area or nontillable area of the Biren farm west of the Galena-Blanding Road and that it was marked on an aerial photograph. He testified that Biren told him that they were buying all the woodland west of the Galena-Blanding Road; that after this he walked the boundary of the woodland with Jacobs and at one point Biren was with them. He testified that Biren did use the term "120 acres more or less" but that they were talking about buying the total tract of woodland across the road. He said that there was talk of $100 an acre but it was the understanding that the woodland across the road would be purchased for $12.000. Kluver testified that he paid taxes for the tract as it was described in the agreement for warranty deed which included more than 120 acres and posted no trespassing signs on the same described property west of the Galena-Blanding Road. On cross-examination Kluver admitted that in these negotiations Biren had used the terminology "120 acres more or less," but that "99%" of the time Biren had referred to the tract "as all of the woodland west of the Galena-Blanding Road."

Kluver admitted that at some time after the original oral agreement to purchase when he walked over the tract he knew that it contained more than 120 acres but that he did not discuss this with Biren. He said he didn't know how much more than 120 acres and that Biren had spoken of 120 acres for the purpose of identification.

Defendant Jacobs testified that Biren had repeatedly stated, "[B]oys, you are buying all of the timber land west of the Galena-Blanding Road" and that Biren said he would dispose of his woodland but not the tillable land; that plaintiffs' counsel drew up the description and written agreement from the tract outlined on the aerial photograph of the farm; and that he understood that the part outlined was all of the wooded tract west of the Galena-Blanding Road. He said that he knew that tract one consisted of more than 120 acres but did not know the exact time when he and Kluver realized this since they walked over the area two or three times. He also said that Biren had referred to the tract as a 120-acre tract "for identification purposes," but that he did not tell Biren that the tract was larger. He said it was the purchasers' intention to buy the land which they saw for $12,000.

The purchase offer was placed in evidence and contained the offer to purchase ...


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