Schwass v. Hershey

Mr. Justice Shope delivered the opinion of the Court: The bill seeks to enforce the equitable right of complainant to a part of lot 5, in L. S. Bowen’s addition to the city of Savanna, derived, as it is claimed, by virtue of his contract of purchase thereof. It is averred in the bill, and shown, that the contract was made May 26,1883, but it is not shown that any representations were then made of the area of the lot purchased by complainant. The contract was reduced to writing as of June 1, 1883, and by reference thereto it is seen that the lot agreed to be conveyed, is “known and described as lot No. seven (7), in block No. one (1), in L. S. Bowen’s addition to the city of Savanna,” and by the same description is conveyed to complainant by deed dated December 1, 1883. Lot 7, on its eastern boundary, is one hundred and sixty-four feet in length, but complainant contends that his purchase included a piece of land of the same width of lot 7, and abutting that lot on the south, sixty feet on its eastern boundary, and, practically, thirty feet on its west line. It is not contended that any representations were made by Bowen, with whom the contract of purchase was made by appellant, by which appellant was misled as to the description of property inserted in the written contract or in the deed. Appellant knew, aside from the fact that the description was shown on the face of the contract and deed, that the premises were described therein as lot 7 in said addition. But the contention is, that by the representations of Bowen, prior to the making of the contract, appellant was induced to believe that by the description inserted in the contract he was getting all of the tract of land included in lot 7, and the abutting piece before described. In the view we take of the case, no analysis of the bill will be necessary, farther than to state, that without seeking to reform the deed, it seeks to compel a specific performance as contended for by appellant, and a conveyance of that portion of lot 5 in said addition described as abutting on lot 7, to appellant, and to remove as a cloud the deed made to defendant Skipper. The doctrine is well settled, that while the rule in courts of law is, that the written instrument is better evidence of the intention of the parties than can be furnished by parol proof, and that the writing, therefore, in contemplation of law, contains the true agreement of the parties, courts of equity will, if justice requires it, look beyond the writing, and grant relief from the effect of a deed or contract, if entered into or founded in mistake or fraud. In such cases, resort may be had to parol evidence to establish the true contract, „which, when found by the court, may be enforced by appropriate decrees. 1 Story’s Eq. Jur. 153, 161, 768; Gillespie v. Moore, 2 Johns. Ch. 585; Hunter, Admr. v. Bilyeu et al. 30 Ill. 228. If, by the contract between these parties, the purchase and sale were of the tract of land claimed by appellant in his bill, and he was induced, by the fraud of Bowen, to part with his money and accept a contract in writing, and subsequently a deed, for another and different tract of land, there is no want of power in a court of equity, upon proper bill filed, to declare the true agreement and grant relief, either by reforming the deed or by compelling specific performance of the real contract. The policy of the law, however, is to require evidence of title to real estate to be in writing, that nothing may be left to the frailty of the memory, or as a temptation to the commission of perjury; hence, where it is sought to establish a contract, by parol, different from that evidenced by a written contract entered into between the parties, the proof should be clear and satisfactory. (1 Story’s Eq. 157, note; Miner v. Hess, 47 Ill. 170; Sapp v. Phelps et al. 92 id. 588; Allen v. Webb et al. 64 id. 342.) The presumption is in favor of the written instrument, and that it is the true and full expression of the intention of the parties in respect of the subject matter to which it relates; and the contract thus expressed will control, unless it is clearly and satisfactorily established, not only that the written instrument incorrectly states the agreement of the parties, but the contract sought to be substituted must be definitely and clearly shown. This would be so if appellant was induced to accept the written contract by the fraud of Bowen, for while the fraud might be inferred from circumstances affording a sufficiently strong presumption of fraud to satisfy the conscience of the chancellor, (1 Story’s Eq. Jur. 190,) appellant will still be required to clearly and satisfactorily establish the contract really entered into, and with such certainty and definiteness that the court could declare and enforce it. This, we are of opinion, the chancellor was warranted in finding had not been done by this complainant. It appears that Bowen and Hershey owned the land now designated as block 1, in L. S. Bowen’s addition to the city of Savanna, and that about May 1, 1883, Schwass applied to Bowen to know the price of the tract of land on which “the spring” was situated. Bowen then told him the land “was not surveyed yet, and that he must wait.” Shortly after this Mr. Jacobs called on Bowen, at the instance of Schwass. Bowen testifies (and is corroborated by many circumstances,) that the survey and plat had not then been made. Jacobs was told that he could have the larger lot for $125, or the smaller lot for $75, or both for $175. It is difficult to understand what was meant by this designation.of the lots not yet surveyed, and comprising only the north end of the tract which it was proposed to plat, unless it be stated that said tract on the north had a frontage of two hundred feet on Van street, which ran north-easterly and south-westerly, thereby making the west line of the tract shorter than the east line thereof. If the north end of the tract was so laid off that it was divided into two lots by a line through the middle, north and south, each lot would have an equal frontage on Van Street; but if the south end of the lots was run at right angles to the east line, as seems substantially to have been indicated in the diagram made for Jacobs by Bowen, the east lot would be the larger of the two. At the interview mentioned, between Jacobs and Bowen, Jacobs requested Bowen to draw a diagram of the tract, which Bowen did upon a scrap of paper. The particular fraud insisted upon is, that by this diagram the larger lot had, on its east line, the figures “236,” and thereby Schwass was misled into supposing that he was purchasing a lot the east line of which would be two hundred and thirty-six feet long, and was induced to part with his money therefor upon that belief, induced by the act of Bowen in making said diagram, whereas, without notifying him of any change in the size of the lots, the conveyance was made of lot 7, which has on its eastern boundary only one hundred and sixty-four feet. It is apparent that very shortly after the making of this diagram the survey and plat were made, for on the next Sabbath after the interview between Jacobs and Bowen, Schwass testifies that he went upon the land, and found the lot staked off. It is not pretended that there were stakes on the tract other than those set by the surveyor who platted the addition. The survey and plat were made May 10 and 11, and although the plat was not recorded until June 14 following, it was in Bowen’s possession from the time of its completion. As before said, the contract was made May 26, 1883, and at that time, it is shown by appellant’s testimony, the diagram given by Bowen to Jacobs, and by Jacobs to him, was not present, or in any way alluded to by any of the parties. Nor was anything said by either party in reference to the size of the lot contracted to be conveyed, or that could have apprised Bowen that Schwass was relying on said diagram, or upon any representation previously made. Schwass says he bought this lot because it was larger and had the spring on it. On the other hand, Bowen, who, so far as shown by this record, is of equal credit with Schwass, testifies, that at the time of the purchase he produced to Schwass the plat made by the surveyor, upon which the size of lot 7 is designated in figures, and sold him the lot as designated on that plat. Early in May, Schwass was told the land was to be surveyed. Shortly afterward he found stakes designating the boundaries of lots, which were not there at his first examination of the grounds. On the diagram upon which he claims to have relied, the lot was not designated by number, so that when Bowen told him he would sell him lot 7 for $125, on which the spring was situated, it would seem strange that he would not at least inquire if the lots were the same, if he had in his mind the lot as described in the diagram. There was no assurance or suggestion by any one that they were the same, and no question in respect thereof was asked by appellant. The evidence of Bowen is strongly corroborated by the written contract and deed. The deed was, as we have seen, made and accepted by appellant long after the plat had been placed of record. All. of the payments were made by appellant, under his contract, after the recording of the plat, except the sum of $10. Appellant, at no time prior to the sale to Skipper, in the summer of 1884, went into the actual occupancy of the tract of land in question. After the sale to Skipper, and after lot 5- had been measured off to him, appellant took possession of that part of lot 5 claimed by him, by building a wire fence on the line he contends for; but for over a year after his purchase no possession had been taken or claim made to the abutting tract described, so far as shown by this record. We do not think it can be said that it is clearly and satisfactorily shown that the written contract and deed do not correctly express the contract of the parties; nor does the preponderance of the evidence establish fraud on the part of Bowen, by which appellant was induced to make and enter into the written contract of purchase. It must be said, if it be conceded that appellant entered into the contract and accepted his deed under a misapprehension of the amount of land he was getting, it was through his own negligence. By inquiry he could readily have ascertained the amount of land that lot 7 contained. The means were at hand by reference to the plat. He knew, as we have seen, that he was contracting for lot 7, and it is not shown that any artifice was employed or untrue representations made by the vendors to induce appellant to make the purchase. The decree of the circuit court dismissing the bill was correctly entered, and will be affirmed. Decree affirmed.