Druecker v. McLaughlin

• Court: Illinois Supreme Court
• Writing for the Court: VICKERS
• Citation: Druecker v. McLaughlin, 235 Ill. 367, 85 N.E. 647 (Ill. 1908)
• Decision Date: 08 October 1908
• Parties: DRUECKER v. McLAUGHLIN et al.

235 Ill. 367

85 N.E. 647

DRUECKER

v.McLAUGHLIN et al.

Supreme Court of Illinois.

June 18, 1908.

Rehearing Denied Oct. 8, 1908.

Appeal from Circuit Court, Cook County; G. A. Carpenter, Judge.

Petition by George D. McLaughlin against Frederick McLaughlin and others. A demurrer to a cross-bill filed by defendant William J. Druecker was sustained and the crossbill dismissed, and he appeals. Affirmed.Henry L. Prescott (Albert M. Kales, of counsel), for appellant.

M. Paul Noyes, for appellees.

This is a bill in chancery filed in the circuit court of Cook county by George D. McLaughlin against Frederick McLaughlin for partition of certain lands situated in Cook county, Ill. William J. Druecker and Agnes M. Witzel, children and only heirs of John Druecker, deceased, were made parties defendant, and as to them the bill sought to remove whatever claim they might have under and by virtue of a certain deed made by their father to George D. McLaughlin, as a cloud upon the title of McLaughlin. William J. Druecker and his sister, Agnes M. Witzel, answered the bill, and William J. Druecker filed a cross-bill making the complainant and all other defendants to the original bill parties defendant, in which he sought to establish a fee-simple title in himself and his sister to the premises in question. George D. and Frederick McLaughlin each filed general demurrers to the cross-bill, which were sustained, and, the cross-complainant electing to stand by his bill, the same was dismissed. William J. Druecker thereupon perfected an appeal to this court, and assigns as error the ruling of the court in sustaining the demurrer to the cross-bill and dismissing the same.

The question involved arises out of the following facts: Prior to 1891 John Druecker was the owner of a block of land known, as ‘block 2,’ in Gardner & Knoke's subdivision, bounded on the west by North Halsted street and on the east by North Clark street. Owing to the fact that North Clark street at this point ran from northwest to southeast, the north line of lot 2 was only about two-thirds the length of the south line. On the 16th of April, 1891, John Druecker executed a plat of block 2, known as ‘Hussander's subdivision,’ out of block 2 of Gardner & Knoke's subdivision, excepting 100 feet on the north side and 50 feet on the south side; each of the excepted strips extending from Halsted on the west to North Clark street on the east. The plat was duly recorded on April 17, 1891, and is as follows:

Image 1 (2.71" X 3.99") Available for Offline Print

On April 27, 1891, John Druecker conveyed lots 1 to 14, inclusive, to various persons. These deed were all acknowledgedon the same day. On the day that they were executed John Druecker executed to Arthur F. Hussander a deed to the south 50 feet, commencing at Halsted street on the west and running east to the west line of the strip marked ‘alley’ on the plat, being the south 50 feet upon which lots 7 to 14, inclusive, abut. This deed to Hussander was made upon a trust which is declared in said deed, as follows: ‘And in trust, further, that in the event said property hereby conveyed, or any portion thereof, is condemned or sold for a public street or alley, to receive the compensation therefor and pay over the same to the persons who are now owners of said lots one (1) to fourteen (14), inclusive, in Hussander's subdivision aforesaid, giving to the said owners for each lot one-fourteenth of the net proceeds of said property after paying the expenses of this trust, including all taxes and assessments that may be levied thereon and paid by said second party as trustee, aforesaid.’ On April 28, 1891, John Druecker and wife, in consideration of $30,000, conveyed, by general warranty deed, lots 15 to 22, inclusive, to George D. McLaughlin. It will be seen by reference to the plat that these lots abut on North Clark street on the east and on an alley on the west. On the same day that this deed was made to McLaughlin, in consideration of $10, he conveyed to said McLaughlin that portion of the south 50 feet that is adjacent to and south of lot 15, extending from North Clark street west to the east line of the alley. This deed was a general warranty deed, which contained the following clause: ‘This conveyance is made, however, upon the express condition that said grantee and his assigns shall keep the said premises open as a private way for access to and egress from all the lots in Hussander's subdivision aforesaid, for the use of the owners and occupants thereof, and for no other persons, forever, or until the same shall be taken or condemned by the proper authorities for a public street.’ This deed embraces the land in controversy in this suit, and the sole question involved is whether the above clause should be construed as a condition subsequent or as a covenant. It will be observed that Druecker still retained title to a small piece of the south 50 feet, which is 20.73 feet wide, which is designated on the plat by the small, oblong square, marked ‘Tract retained by Druecker.’ In 1893 Druecker conveyed this remaining piece to George D. McLaughlin by general warranty deed, for the consideration of $500, which was the full value of the land conveyed. There was no condition or limitation in this deed.

It will be observed that while it seems to have been contemplated by John Druecker that a street or passageway would necessarily be maintained between Halsted and North Clark streets, both on the north and south sides of his subdivision, no street or passageway was dedicated by the plat on either side to the public. In 1891 the city of Chicago instituted a condemnation proceeding for the purpose of condemning for a public street the south 50 feet, extending from North Clark street to Halsted street. The attempt at that time was to extend Oakdale avenue in a direct line from Clark street to Halsted; Oakdale avenue having been prior to that time opened east of...