Ockenga v. Alken

• Decision Date: 13 May 1942
• Docket Number: Gen. No. 41876.
• Citation: Ockenga v. Alken, 314 Ill.App. 389, 41 N.E.2d 548 (Ill. App. 1942)
• Parties: OCKENGA ET AL. v. ALKEN ET AL.
• Court: Appellate Court of Illinois

314 Ill.App. 389

41 N.E.2d 548

OCKENGA ET AL.

v.ALKEN ET AL.

Gen. No. 41876.

Appellate Court of Illinois, First District, Second Division.

Feb. 10, 1942.

On Rehearing April 28, 1942.

Rehearing Denied May 13, 1942.

Appeal from Superior Court, Cook County; Robert C. O'Connell, Judge.

Suit by Herman Ockenga and others against John Alken and others for modification or cancellation of restrictive covenants in a deed. From a decree dismissing the complaint, the complainant appealed to the Supreme Court, 376 Ill. 533, 34 N.E.2d 711, which transferred the appeal to the Appellate Court, first district, second division.

Affirmed. Thomas Tighe and Gold & Liebman, all of Chicago (Thomas Tighe and Charles Liebman, both of Chicago, of counsel), for appellants.

Hoffman, Hoffman & McCabe, of Chicago (Harry Hoffman, of Chicago, of counsel), for appellees.

FRIEND, Justice.

Plaintiffs are the owners of three lots in Nixon's Terminal Addition to Westchester, a village in Cook county approximately five miles west of the Chicago city limits. Their deeds of conveyance contain covenants restricting until 1970 the use of the lots for any purpose other than the construction of three-flat brick buildings to cost not less than $18,000. They filed a complaint in equity, referred to as a “quasirepresentative” suit, in which other property owners who might choose to claim the benefit of these proceedings were invited to join, seeking by the decree of the court to modify these building restrictions. Some fifteen other property owners moved to strike the complaint on the ground that it did not set forth a cause of action and for various other reasons assigned, including one that certain portions of the prayer for relief were in contravention of the Constitution of the United States. The court allowed the motion to strike, and plaintiffs having elected to stand by their complaint, the cause was dismissed for want of equity. They thereupon prosecuted an appeal direct to the Supreme court of Illinois, where pursuant to an opinion filed April 15, 1941 (Ockenga v. Alken, 376 Ill. 533, 34 N.E.2d 711), the court transferred the cause to this court for determination because no constitutional question was involved.

From the salient allegations of the complaint it appears that the Village of Westchester was organized in 1925 and covers an area of approximately 2,200 acres. It contains a population of about 600 people, who reside in 145 buildings, three three-flats, twenty-one two-flats and 121 single-family dwellings, substantially all of which were constructed prior to 1929. The total area of the lots occupied by these buildings covers approximately twenty acres, so that improvements have been built on lots extending over less than 1 per cent of the total area of the village, and lots covering more than 99 per cent of the total area are still unimproved. No buildings have ever been constructed in this subdivision except one three-flat, which was built by the promoters prior to 1929 at a cost of $25,000 exclusive of the land. This property was recently sold for 9,500, including the land and a three-car garage.

The subdivision was laid out in 1926, the year after the village was incorporated. It is alleged that in order to make the lots thereof appear to have a higher value so that greater prices could be obained for them, the subdividers caused the deeds of conveyance given to purchasers to contain covenants restricting the use of the lots for any purpose other than the construction of three-flat buildings to cost not less than $18,000; that the purchasers of the lots were told by the seller that the property subjected to these restrictions was particularly suited for three-story apartment buildings and that the purpose of the restrictions was to maintain the premises at a higher value and to enable them to be utilized on the basis of their highest economic value.

Plaintiffs further aver that these representations proved to be wholly groundless; that the promotion failed with the collapse of the real estate boom after 1929, and the Village of Westchester failed to develop; that it has been impossible to obtain capital to finance the construction of three-flat buildings on plaintiffs' lots and on the other portions of the subdivision; and that the recent sale for $9,500 of the eleven year old three-flat building originally costing $25,000 demonstrates that it is economically unfeasible to construct three-flats for $18,000 in this subdivision.

The complaint alleges that since the adoption of the United States Government housing policy, loans for the construction of single-family dwellings may be obtained upon property situated as in this subdivision; that by virtue of changing financial and general conditions, the subdivision is now well adapted for the construction of single-family dwellings, and for the same reason is wholly unadapted for the construction of three-flat residential buildings, as provided in the restrictions; that so long as the restrictions remain of record against the premises, they constitute a cloud on title and make all the real estate wholly valueless for any purpose; that in other subdivisions in the Village of Westchester which were restricted to two and three-flat buildings no such buildings have been erected, but when those restrictions were recently removed the building of single-family dwellings on a large scale immediately followed.

It is further alleged that a large number of the lots in this subdivision have defaulted heavily on general real estate taxes so as to become a drain and burden upon the community; that improvements have been constructed, for which special assessments have been levied, and many of the lots are in default on special assessments, whereby the owners of the special assessment bonds have been deprived of their security and of repayment of their money, and the credit of the community has been and continues to be damaged; that if and when the restrictions are removed, so that the parts of the subdivision adapted for residential purposes may have built on them single-family dwellings, then all the lots of the subdivision will obtain a substantial economic value, loans will be available for building and paying back taxes and special assessments, and the individual owners of the lots and the community as a whole will be greatly benefited.

It is alleged that the suit was brought to remove or modify the restrictions on the lots and to obtain a decree providing for the construction of one-family dwellings thereon costing not less than $5,000; that the suit is brought not only for the benefit of plaintiffs but of all other lot owners who desire to join in the prosecution thereof, or partake of the benefits of the decree which might be entered, and who will contribute fair and just amount to the expense of the prosecution of the proceeding. Plaintiffs asked for an injunction from any attempt at enforcement of the $18,000 three-flat building restriction, and for such other relief as may be just and equitable.

The...