Morel v. Masalski
| Decision Date | 20 December 1928 |
| Docket Number | No. 18765.,18765. |
| Parties | MOREL et ux. v. MASALSKI et ux. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Commissioner's Opinion.
Suit by Charles L. Morel and wife against Alex Masalski and wife. Decree for defendants, and complainants appeal.
Affirmed.
Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.
Lefkow & Lefkow, of Chicago, for appellants.
Slakis & Spence, of Chicago, for appellees.
Appellants, Charles L. Morel and Daisy E. Morel, his wife, filed their bill for relief in the circuit court of Cook county against appellees, Alex Masalski and Josephine Masalski, his wife. A demurrer was sustained to the bill as amended, it was dismissed for want of equity, and an appeal has been prosecuted to this court.
The amended bill alleged that appellees were the owners of an apartment building in Chicago. On September 15, 1925, they entered into a written contract with appellants for its sale for $47,000, of which $13,000 was paid when the contract was signed, $2,000 was to be paid May 1, 1926, a trust deed for $20,000 due in five years was to be executed to the Chicago Title & Trust Company as trustee, and a second mortgage for the unpaid balance was to be executed to Bessie Zacharewicz as trustee, payable at the rate of $125 a month, with interest at 6 per cent., payable monthly. On September 15, 1925, appellees executed a warranty deed to appellants, which was placed in escrow until appellants complied with the provisions of the contract. On May 7, 1926, appellants complied with the contract, and the deed was delivered to them and filed for record the next day.
The bill alleged that, prior to the signing of the contract, appellees told appellants that appellees had applied to the board of review of Cook county for a reduction of the general taxes on the property, and the board of review had reduced the taxes to approximately $411.60 per annum, and the taxes for 1925 and ensuing year would be approximately that amount, which was made the basis for prorating the tax between the parties; that appellees delivered to appellants a written contract, in which they agreed that, in case the taxes for 1925 were more than $411.60, they would refund to appellants the pro rata difference between that amount and what the taxes for 1925 actually were; that prior to the execution of the contract appellants investigated the income from the property and the various expenses of maintenance, and found that the income would cover the maintenance, including interest, monthly payments on the second mortgage, and general taxes, provided the taxes were not larger than represented by appellees; that at the time the contract was executed the general tax bills for 1925 had not been issued, but appellants took the statements of appellees to be true, and, acting upon such statements, entered into the contract; that the income from the premises is insufficient to cover the expense of maintenance, if the taxes for any one year are greater than approximately $411.60; that appellants would not have entered into the contract had they known that the taxes were greater in any one year than said amount; that the tax bill for 1925, when issued, showed a valuation of $4,900 and a tax of $443, which appellants paid; that the tax bill for 1926 was issued on April 20, 1927, and showed a valuation of $9,900 and a tax of $919; that after the tax bill for 1926 was issued appellants caused an investigation to be made of the records of the board of assessors and the board of review, and found that no reduction in taxes had been made, but the record showed that appellees, in connivance and conspiracy with some other persons to appellants unknown, caused the $9,900 assessment in the assessor's books to be fraudulently and unlawfully changed in the county collector's warranty book to $4,900, which change was made for the purpose of causing the general tax bill for 1925 to be made from the figures appearing in the collector's warranty book, thus making the taxes for 1925 in an amount approximately as stated by appellees; that appellees well knew, prior to the sale, that the premises could only be maintained at a loss if taxes had to be paid upon a valuation of $9,900; that the fraudulent representations of appellees were made for the purpose of concealing the true cost and expense of maintaining the premises, and to induce appellants to enter into a contract which they otherwise would not have entered into, to their great injury and damage; that appellants are unable to pay the additional amount of taxes for 1926 and meet other payments for interest which are now due; that the premises will be subject to tax sale or foreclosure, in either of which events appellants will be put to great expense and irreparable loss and damage; that they are advised that they will be called upon to pay the difference between the $443 paid by them upon the fraudulent tax bill of 1925 and the amount of the true tax upon the premises, and suit therefor is about to be entered against them; that in order to make the cash payment of $2,000 due on May 1, 1926, appellants offered for sale a bungalow owned by them, and they were obliged to sell it for $1,000 less than they could have obtained from another party; that they accepted this offer for the sole purpose of realizing the $2,000 cash payment to be made under their contract with appellees; that by reason thereof they have sustained a loss of $1,000 upon the bungalow, which they otherwise would not have sustained; that since discovering the fraud they have offered to rescind the contract, restore the premises to appellees, account for all money received, and in all things to place appellees in statu quo, if they will do likewise, as in justice and equity they should do; that they refuse so to do, and threaten to institute foreclosure proceedings for the interest due, which appellants are unable to pay.
The bill made the two appellees parties defendant, together with the Chicago Title & Trust Company, trustee, and Bessie Zacharewicz, trustee, and prayed that the contract, the warranty deed, the deeds of trust to the two trustees, together with all notes and other evidence of indebtedness, and all documents pertaining thereto, be set aside and declared null and void; that an account be taken, and appellees be restrained by injunction from instituting any proceeding to foreclose the mortgage until the further order of the court.
It is insisted by appellants that the amended bill stated a cause of action; that ...
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