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Schulz v. Mccracken

OPINION FILED JANUARY 25, 1977.

PHILIP SCHULZ, JR., ET AL., PLAINTIFFS-APPELLEES,

v.

E. RAY MCCRACKEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The suit underlying this appeal is a quiet title action in which the plaintiffs, Philip Schulz, Jr., and his wife, Ruth, also sought injunctive relief against the defendant's, E. Ray McCracken's, use and possession of the five-acre tract involved. Following a bench trial, judgment was entered for the plaintiffs. From this judgment the defendant appeals.

The land involved in this appeal is described in the plaintiffs' deed as:

"The West 5 acres of the 13 acres of land described as follows: Beginning on the North and South half Section line, 80 rods South of the Northwest corner of the Northeast quarter of Section 2, in Township 37 North, and in Range 10 East of the third Principal Meridian and run thence East 80 rods, thence South 26 rods, thence West 80 rods and thence North 26 rods to the point of beginning, situated in Will County, Illinois."

On the other hand, the defendant's land has the following legal description:

"The Southwest quarter of the Northwest quarter of the Northeast quarter of Section 2, Township 37 North, Range 10 East of the third Principal Meridian, Will County, Illinois."

The issue arises because, if the descriptions are construed under the United States Government Survey, the defendant's land would encompass and absorb part of the land described in the plaintiffs' deed. However, the United States Government Survey indicates that the northeast quarter of section 2 contains 172.28 acres and was divided in such a way that the northern portion of the quarter contained 92.28 acres while the southern portion contained 80 acres, the usual acreage for a half quarter section.

• 1 The defendant argues that there is no ambiguity in the deed which transfers title of the quarter, quarter, quarter section to him. We disagree.

"A latent ambiguity occurs where a writing appears on its face clear and unambiguous, but which, in fact, is shown by extrinsic evidence to be uncertain in meaning; or where a description apparently plain and unambiguous is shown to fit different pieces of property, and in such cases, the ambiguity being raised by extrinsic evidence, the same kind of evidence may be admitted to explain it or identify the property referred to in the writing." (Allendorf v. Daily (1955), 6 Ill.2d 577, 590, 129 N.E.2d 673, 680.)

The history of the conveyancing of these parcels of land show that the legal description in the defendant's deed applies to land other than that to which it would apply if that description were construed under the United States Government Survey alone.

The chain of title of both parcels originates in 1835 when Hannibal Ward purchased the west half of the northeast quarter of section 2, containing 86.14 acres of land. Ward conveyed away two separate portions of this property. The first was to Nathan Steward, and the legal description of the land involved in that conveyance was:

"[B]eginning at the North West corner of the North east quarter of Section No. Two in Township No. Thirty seven North of Range No. Ten East of the third principal meridian and running thence South along the quarter section line Eighty rods, thence east across west half of said quarter, thence north along the east line of said lot to the north line of said quarter, thence west along said line to the place of beginning, to contain forty acres the same more or less."

Subsequently, Steward conveyed away 10 acres of this land to Casper Beck. The legal description contained in that deed is:

"The South West quarter of the North West quarter of the North East quarter of Section Two (2) in Township Thirty-seven (37) North and of range Ten (10) East of the Third Principal ...


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