Chance v. Kimbrell

• Citation: 35 N.E.2d 48,376 Ill. 615
• Decision Date: 13 June 1941
• Docket Number: No. 26056.,26056.
• Parties: CHANCE et al. v. KIMBRELL.
• Court: Supreme Court of Illinois

376 Ill. 615

35 N.E.2d 48

CHANCE et al.

v.KIMBRELL.

No. 26056.

Supreme Court of Illinois.

June 13, 1941.

Suit by A. R. Chance and others against Birdie Kimbrell to correct an erroneous description in a mineral deed, wherein defendant filed a counterclaim and Charles L. Kanatzar and another were brought in as new parties defendants to the counterclaim. From a decree dismissing the counterclaim for want of equity and granting the prayer of the complaint, defendant appeals.

Reversed and remanded with directions.Appeal from Circuit Court, Fayette County; Franklin R. Dove, judge.

Will M. Albert, of Vandalia, and C. H. Douglas and Carus S. Icenogle, both of Mattoon, for appellant.

Will P. Welker, W. F. Sonnemann, and Robert Burnside, all of Vandalia, Harris, Price & Alexander, of Columbia, Mo., and R. E. Ausmus, of Centralia, Mo., for appellees.

MURPHY, Justice.

This is an appeal from a decree of the circuit court of Fayette county which dismissed for want of equity the counterclaim of Birdie Kimbrell, who will be hereinafter referred to as defendant, and granted the prayer of a complaint filed by several parties hereinafter referred to as plaintiffs. Plaintiffs sought by their complaint to correct as a mutual mistake an erroneous description in a mineral deed alleged to have been executed by defendant. Defendant, by her counter-claim, asked that the deed containing the erroneous description and two other deeds given at the same time be declared void and removed as clouds on her title. Defendant appealed directly to this court. Support for this court's jurisdiction by direct appeal is found in Tucker v. Kanatzar, 373 Ill. 162, 25 N.E.2d 823, and Ohio Oil Co. v. Daughetee, 240 Ill. 361, 88 N.E. 818, 36 L.R.A., N.S., 1108.

Determination of the questions raised on the dismissal of the counter-claim makes it unnecessary to consider plaintiffs' right to a reformation of the description. Defendant owned 302 acres of land located in Fayette county. During the summer of 1936 she executed an oil and gas lease reserving the usual royalties. This litigation arises out of three mineral deeds purported to have been signed by defendant which convey an undivided one-half interest in the mineral rights in said lands subject to her oil and gas lease. Defendant alleged in her counter-claim that (a) the mineral deeds were blank as to grantee when they were executed; (b) that material alterations were made after execution by the adding of the name of a grantee and by inserting the following clause ‘this deed expires in twenty-five years unless oil and gas is produced on this land;’ and (c) that the deeds were procured by fraud and misrepresentation practiced upon her by Charles L. Kanatzar.

The plaintiffs in the complaint were all made defendants to the counter-claim and Charles L. Kanatzar and C. Leplie Kanatzar were brought in as new parties defendants to the counter-claim.

The several tracts of land described in the three deeds are grouped according to the deeds as tracts Nos. 1, 2 and 3. Tract No. 1 purported to convey one-half of defendant's mineral rights in 172 acres; tract No. 2, 100 acres, and No. 3, 30 acres. The instruments conveying tracts Nos. 1 and 2 were to A. R. Chance as grantee while the one conveying No. 3 was to A. B. Chance. All the deeds were dated March 17, 1937, and purported to have been acknowledged by defendant before the counter-defendant Charles L. Kanatzar.

By means of several conveyances bearing the dates of April 19, April 22, May 18, and June 1, 1937, the grantees named in the deeds of March 17 conveyed fractional interests to various grantees. George W. Atwood, Maurice G. Atwood and Charles H. Atwood acquired certain interests and paid Charles L. Kanatzar for the same. During the trial both the complaint and counterclaim were dismissed as to all the Atwoods. The remaining interests are now held in the name of A. B. Chance, a cousin of Charles L. Kanatzar, F. Gano Chance, a son of A. B. Chance, and C. Leplie Kanatzar, a son of Charles L. Kanatzar. No question is raised as to the interest of an innocent purchaser. The litigation on the counter-claim is between defendant as counter-claimant, the two Chances and the two Kanatzars as counter-defendants and involves the mineral rights conveyed by defendant's deeds, excepting that acquired by the Atwoods which was limited to 60 acres of tract No. 1 and a part of tract No. 2.

On the hearing, defendant denied execution of the three deeds but she had not made specific denial of such execution in her pleading and in presenting her case in this court she urges points which necessarily assume the genuineness of her signature to the three deeds. Under such conditions they will be considered as having been duly signed by defendant. She signed them in the presence of Charles L. Kanatzar in her home in St. Elmo in said county. She testified Kanatzar came to her house and made inquiry relative to the purchase of one-half her mineral rights. That he told her he was buying it for people from Texas and gave the name Hays as a purchaser. She said he offered her $375 which she refused and to which she made the counter-proposition that she should have $500; that Kanatzar then said the interested purchasers were in his office in St. Elmo and he would submit her proposition to them; that he left her house and returned in a short time and said they agreed to pay the $500. Kanatzar gave defendant his personal check for that amount and when she made inquiry relative to his check, he stated the parties had given him money which he had deposited in his personal account and was paying from such fund. She testified, further, that she told Kanatzar at this time, and on a previous occasion in 1936, that she would not sell her mineral rights for a longer period than ten years and she claims that the 25-year limitation period in the deeds was not present when she signed it, and that the name A. R. Chance as grantee did not appear in the deeds for tracts Nos. 1 and 2. In July, 1938, Charles L. Kanatzar called on defendant and asked her to sign a correction deed as to the erroneous description of 10 acres included in tract No. 1. Kanatzar had the deed with him which defendant examined and she says that for the first time she then learned that the conveyance was to A. R. Chance and that it contained the 25-year limitation provision. The suit was instituted August 18, 1938, and defendant filed her counter-claim January 20, 1939. She offers to do equity by repaying the consideration received to the person to whom it equitably belongs. The two deeds conveying tracts Nos. 1 and 2 to A. R. Chance were filed for record April 30, 1937, and the one conveying tract No. 3 to A. B. Chance was filed March 19, 1937.

Kanatzar's testimony is in direct conflict with defendant on the main parts of the transaction. He denied having told her that he was buying the property for people from Texas or that he gave her the name Hays as a purchaser. He says there was no one waiting at his office and the purpose of his going there was to procure blank deeds. He testified he went to defendant's home pursuant to a request made by a mutual friend of his and defendant's, that he had known defendant for many years and that in a few instances she had sought and obtained his judgment and advice on matters of her business. He knew she was in financial distress with her property mortgaged to the St. Elmo bank and that interest was in arrears and taxes were due. On cross-examination he said he went to her home because he was sympathetic toward her by reason of her financial condition.

One of the names appearing in the complaint as plaintiff was ‘A. R. Chance.’ It was alleged he acquired the mineral deed to tract No. 1, that he paid the defendant a valuable consideration for it and that there was a mutual mistake in the description for the correction of which he asked the aid of a court of equity. The gist of the whole complaint was that ‘A. R. Chance’ was the real purchaser and that the other parties were added as plaintiffs because they were his grantees and in making the conveyance to them he had followed the erroneous description. Prior to the hearing, defendant caused notice to be served demanding the presence...