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Agate v. Krozka

OPINION FILED JULY 20, 1977.

RALPH L. AGATE, PLAINTIFF-APPELLANT,

v.

EDWARD C. KROZKA ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH F. WOSIK, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 31, 1977.

Plaintiff, Ralph Agate, brought this action in chancery seeking reformation of the legal descriptions set out in land sale contracts and deeds which he delivered to defendants Edward Krozka and Peter and Ona Ankus. Plaintiff contends that the errors in the legal descriptions were mutual mistakes which resulted in the defendants obtaining more land than the parties had intended. After hearing the testimony adduced by both sides, the trial judge denied plaintiff any relief and plaintiff appeals from that order.

In October 1967, plaintiff was the owner of 60 acres of vacant property at 143rd Street and 108th Avenue located in Orland Park, Illinois. At that time, plaintiff sold five acres of the tract to Carl Osterman for $12,500. That five acres fronted on 108th Avenue and measured 220 feet wide and 990 feet deep.

The next tract of land sold by defendants was to defendants Peter and Ona Ankus in March 1968. The legal description contained in the Ankus sales contract and deed reads, "The South 220 feet of the North 440 feet of the Southeast Quarter of the Southwest Quarter of Section 5." As written, the deed conveys 6 2/3 acres of land. According to plaintiff, he showed the Ankuses the property and told them that he had five acres for sale. When Mrs. Ankus stated that she did not want that much land, plaintiff told her that under Illinois law he could not sell less than a five-acre tract. In response to her question about the price, plaintiff stated that the purchase price was $3,000 per acre or $15,000 for the five acres. Mrs. Ankus said they would buy the property and wanted to make a down payment, but plaintiff referred her to his attorney. Plaintiff further testified that thereafter the sale was completed.

Approximately one week later, Herman Gee, a friend of plaintiff and a real estate salesman, brought the defendant Krozka to plaintiff's home. Gee had shown Krozka the Ankus property and had accepted a down payment from Krozka without a contract. After plaintiff told Krozka that the Ankus property was sold, he showed him the parcel immediately south. Plaintiff testified that he told Krozka that this piece of land was 220 feet by 990 feet, measured to the middle of the road. When Krozka expressed a preference for the Ankus property, plaintiff offered to sell the second parcel to Krozka for $14,000.00 and to pay next year's taxes. Krozka accepted, and the legal description of the parcel as shown in the contract and deed was, "The South 220 feet of the North 660 feet of the Southeast Quarter of the Southwest Quarter of Section 5 * * *." This resulted in a conveyance of 6 2/3 acres of land to Krozka. Plaintiff testified that posts and wire rope ran along the 990-feet line on the western edge of the property. Plaintiff also stated that for three years after he sold the property he cut the weeds for Krozka up to the 990-foot line.

On June 1, 1968, plaintiff contracted to sell the 18 acres west of the Osterman, Ankus and Krozka parcels to a Dr. Howard. On the same day, plaintiff agreed with Marilyn Henley to sell another piece of the original 60 acres to her. The agreement was to sell Henley a total of 12 acres comprising the eastern 330 feet of the southwest quarter. As a result, the tract of land which Henley was to receive overlapped the written conveyance plaintiff made to the Ankuses and Krozka.

Subsequent to the above sales, plaintiff attempted to obtain a tax division of the property. Plaintiff testified that, pursuant to his direction, a tax division petition was prepared and filed with the county assessor. When plaintiff discovered that the legal description in the Krozka and Ankuses' deeds each described tracts of 6 2/3 acres, plaintiff went to see defendants. He testified that Mrs. Ankus told him, "I did not make the error; I did not make the mistake." She told him she wanted to discuss it with her son.

In July 1974, plaintiff met with Algis Ankus, the purchasers' son. Algis Ankus told plaintiff that his parents' dog was buried about 50 feet from the western boundary of the property line. Plaintiff took Algis to the tax collector's office, showed him the division made on the map, and indicated that he wanted to have a survey made of the property.

In September 1974, plaintiff had another conversation with Algis Ankus. Plaintiff testified that Ankus said he did not know if "his good judgment should overcome his greed," and that keeping the property would be like "finding a gold brick." Plaintiff further testified that Algis spoke of using the money to take a long vacation or to start business as a druggist.

On cross-examination plaintiff testified that he had inherited the property in 1958 and he did not order a survey until after he had commenced dividing and selling off parcels. Prior to the Osterman sale, there were no markings of any kind on the property and the only metes and bounds marks on the land were directly across the road. Subsequently, there was one metes and bounds mark on the northeast corner and another at the 660-foot line on the northwest end of the tract and none inside the quarter section. Prior to the sale of land to the Ankuses, a survey of the Osterman property was ordered by Gee. Plaintiff was unaware of any survey made of the rest of the quarter section.

Carl Osterman testified on behalf of the plaintiff that he purchased the five-acre tract north of the Ankus property in October 1967. He stated that throughout the previous several years Mrs. Ankus always referred to her "beautiful five acres" and "beautiful view." He first heard her make the comment in 1968 in the presence of her husband and son. At that time she also stated that she thought she had paid too much for five acres.

On cross-examination Osterman testified that in 1968 the Ankus property was covered with weeds and some small trees. A drainage ditch ran along the western edge of the property. A survey was ordered for him four months after he purchased the property. Plaintiff's attorney had prepared the deed and Osterman was positive the attorney had seen the survey. Osterman and the plaintiff were friends.

Herman Gee testified in behalf of plaintiff that he was a real estate salesman and specialized in the sales of tracts five acres and larger. Plaintiff hired Gee to sell 15 acres of real estate. Gee sold the first five-acre parcel measuring 220 feet by 990 feet to Osterman in the fall of 1967. In 1968 he showed Krozka the Ankus property and the tract adjacent to it. After receiving a deposit from Krozka on the first parcel, Gee learned the property had been promised to ...


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