Schlenz v. Dzierzynski

• Citation: 134 Ill.App.3d 937,89 Ill.Dec. 736,481 N.E.2d 287
• Decision Date: 11 July 1985
• Docket Number: No. 3-84-0537,3-84-0537
• Parties: , 89 Ill.Dec. 736 Gerald SCHLENZ and Karen S. Schlenz, Plaintiffs, Counter-defendants and Appellees, v. Robert DZIERZYNSKI and Janice Dzierzynski, Defendants, Counter-plaintiffs, Third-party Plaintiffs and Appellants, v. John GRIGALUNAS and Helen Grigalunas, Third-party Defendants and Appellees, and Gerald L. Schlenz and Karen S. Schlenz, Intervening Third-party Defendants and Appellees.
• Court: United States Appellate Court of Illinois

Page 287

481 N.E.2d 287

134 Ill.App.3d 937, 89 Ill.Dec. 736

Gerald SCHLENZ and Karen S. Schlenz, Plaintiffs, Counter-defendants and Appellees, v. Robert DZIERZYNSKI and Janice Dzierzynski, Defendants, Counter-plaintiffs, Third-party Plaintiffs and Appellants, v. John GRIGALUNAS and Helen Grigalunas, Third-party Defendants and Appellees, and Gerald L. Schlenz and Karen S. Schlenz, Intervening

Third-party Defendants and Appellees.

No. 3-84-0537.

Appellate Court of Illinois Third District.

July 11, 1985.

Louis E. Olivero, Peru, for defendants and appellants.

John Balestri, Bruno P. Bernabei, Spring Valley, for appellees.

SCOTT, Justice:

This action was commenced in the circuit court of Bureau County by the plaintiffs, Gerald and Karen Schlenz, to quiet title to acreage they acquired in rural Bureau County. Their neighbors, the defendants, Robert and Janice Dzierzynski, opposed the relief requested by the Schlenzes' complaint. The circuit court entered a judgment for the plaintiffs and the Dzierzynskis have appealed to this court.

In 1966, John and Helen Grigalunas owned in excess of twenty acres in Hall Township of Bureau County. In that year they were approached by the Dzierzynskis who wanted to purchase an acreage for a home site and for a wildlife sanctuary. After inspecting the Grigalunases' property, the Dzierzynskis made an offer for the eastern-most portion of the Grigalunases' acreage. The eastern portion of the acreage was wooded and the western portion was a cultivated field and the site of the Grigalunases' residence. A fence separated the two portions. No survey was available which described the wooded area which the Dzierzynskis wanted to purchase, and instead of causing a survey to be performed, the Grigalunases and Dzierzynskis decided to save costs and conducted their own measurement of the tract. The fence separating the eastern and western portion of the entire Grigalunas acreage appeared to run a true north-south course, as did the fence on the east boundary of the Grigalunas acreage. With this observation in mind, the parties measured the distance between the two fences at the south end of the acreage. This distance was 410 feet, and based on this measurement, the Grigalunases' attorney prepared a deed describing a tract of even width, 410 feet. The deed was dated August 12, 1966, and thereafter the Dzierzynskis took possession of this wooded, eastern tract.

Although the Grigalunases and the Dzierzynskis observed the fence on the west side of the deeded tract, and thought the fence paralleled the fence on the east side, running a true north-south course, the fence in fact angled from the southeast to the northwest. Thus, the wooded area which the Dzierzynskis thought they were buying, and the Grigalunases thought they were selling, was wider at the north end than at the south end, and there was a triangular tract of land which the buyer and seller intended to convey which was not described in the August, 1966, deed.

In June, 1968, the Grigalunases sold to Laverne and Ann Bernard the cultivated tract immediately to the west of the Dzierzynskis' property. Again, no survey was performed, and the deed was prepared in reliance on the earlier measurements. As a result, the deed described the cropland and the triangular tract which the Dzierzynskis thought they had purchased two years earlier.

In 1979, another conveyance occurred relevant to the background of this dispute. In that year, Herbert Klein began negotiations to purchase the same property that the Bernards had acquired in 1968. Inquiring about the boundaries, Klein was advised by Mr. Bernard that he was unsure exactly where the property line was, but that he would join with Klein to have the property surveyed. Before the survey could be completed, Klein invited his son Gary, a graduate engineer, to join him in inspecting the property. They measured the area described in the Bernards' deed, and convinced by their measurements that the Bernards were selling both cropland and a part of the wooded acres, Klein consummated the purchase from the Bernards. Two months later a survey was performed and the accuracy of the Klein measurements was confirmed. In November, 1979 Klein conveyed a part of the property he purchased to his daughter and son-in-law, Gerald and Karen Schlenz. Included in this conveyance was the triangular tract of land previously identified. The Schlenzes intended to develop the property for residential building lots.

Sometime later, the Dzierzynskis became aware of the recently completed survey, and of the discrepancy between the property they intended to purchase and the property described in their deed. In an effort to correct this discrepancy, the Dzierzynskis sought out the Grigalunases who executed a correction deed which described the land previously conveyed in 1966 as well as the disputed triangular tract. This correction deed was dated January 9, 1982.

The instant lawsuit was filed by the Schlenzes to quiet the cloud on their title represented by the correction deed. The Dzierzynskis answered, denying that the Schlenzes had good title, and complaining against the Schlenzes and the Grigalunases for reformation of their 1966 deed. The circuit court agreed with the Dzierzynskis that the erroneous description in their deed was the result of a mutual mistake, and suggested that if the rights of innocent third parties had not intervened, reformation would be in order. However, the same court found that the Schlenzes were bona fide purchasers for value, without notice of the Dzierzynskis' claim to title; therefore, the circuit court's judgment expunged the correction deed and quieted title in the Schlenzes. The Dzierzynskis appeal from this judgment, asserting that under the...