Stodolka v. Novotny

• Decision Date: 19 January 1893
• Citation: 144 Ill. 125,33 N.E. 534
• Parties: STODOLKA et ux. v. NOVOTNY.
• Court: Illinois Supreme Court

144 Ill. 125

33 N.E. 534

STODOLKA et ux.

v.NOVOTNY.¹

Supreme Court of Illinois.

Jan. 19, 1893.²

Appeal from circuit court, Cook county; Edward P. Vail, Judge.

Bill of Joseph Novotny against Frank Stodolka and Josefina Stodolka, his wife. Complainant obtained a decree. Defendants appeal. Reversed.Theo. H. Schintz, for appellants.

& Jindrich and Alex. Collins, for appelice.

& Jindrich and Alex. Collins, for appelice.

The other facts fully appear in the following statement by SHOPE, J.:

This was a bill for reformation of a contract, in writing, entered into November 24, 1889, between the parties, by which, in consideration of the agreement of Novotny to pay Stodolka and wife $3,475, in the manner following: $100 earnest money in hand, and the balance on the 1st day of June, 1890, etc.,-Frank Stodolka and Josefina Stodolka ‘covenanted and agreed to convey and assure to said party of the second part, [Novotny,] in fee simple, clear of all incumbrances whatever, by a good and sufficient deed, the lot, piece, or parcel of ground,’ etc., describing it, with the buildings and improvements thereon. It was further agreed that upon the failure of Novotny to make the payments, or any of them, as stipulated, the contract, at the option of the first party, should be forfeited and determined, and all previous payments retained as liquidated damages. Time is made the essence of the contract, etc. The bill, as originally filed, averred the readiness and willingness of Novotny to perform; the payment of the $100 at the execution of the contract; that he demanded abstracts as provided for in said agreement, but defendants refused to deliver the same; that on the 31st day of May, and again on the 2d of June, 1890, he tendered the sum of $3,375, being the balance of the purchase price agreed upon, and requested the said Frank and Josefina Stodolka to deliver to him a sufficient warranty deed, conveying the land, free of all liens and incumbrances, including the release of dower and homestead; that they absolutely refused to accept said money and execute said deed, and notified him that they would not then, or at any other time, carry out said contract, etc. The prayer was that they be required to convey by warranty deed, free from all liens, including homestead and dower, etc. The bill was afterwards amended so as to allege that prior to the time of reducing the contract to writing the parties had agreed that Novotny should purchase the premises in said contract mentioned for the price therein set forth, and that the defendants should execute to him a warranty deed containing, in addition to the covenants of warranty, the release of the dower right of said Josefina Stodolka, and the homestead right of each of said defendants, in said premises, and that they would deliver up to Novotny, on the 1st day of June 1890, upon payment of the sum of $3,375, possession and control of said premises. It is then alleged that complainant is a Bohemian, unacquainted with the English language, and with ways and methods of buying and selling real estate, and that the parties went together to the house of one John Dvorak, a notary public; stated to him said agreement, and requested him to reduce the same to writing; that said notary, through ignorance, etc., neglected, in said contract, to make provision for the release of the dower right of the defendant Josefina, or of the homestead rights of the defendants, in said premises, ‘and neglected, through ignorance, as aforesaid, to acknowledge’ the said contract. It is then alleged that although the contract, through the ignorance and mistake of said notary, failed to provide for the release of the homestead and dower rights before mentioned, the true and real intention of the parties to said contract was that the same should be released and waived in accordance with the statute, etc. The prayer was also amended, ‘that said contract may be corrected and rectified so as to show the true intent and meaning of the parties.’ Answers were filed, admitting the ownership of the property in fee, and the entry into the contract set forth in the original bill, but denying that complainant had been willing or offered to perform the same; charging that her efused to do so; denying that they notified complaint that they would not accept the purchase money, and deliver a warranty deed, in accordance with the contract; averring that, on the contrary, they offered to carry out said agreement, and deliver a warranty deed in accordance therewith, and that he refused to accept it; and traversing the remaining allegations of the bill, etc. Upon hearing, the court found that the parties entered into the written contract mentioned, and that, through mistake and ignorance of the notary public in drafting the contract, he failed to insert that said premises were to be conveyed by said defendants with full release of dower and homestead rights of said defendants, and also neglected to inset, through ignorance, also neglected to insert, through ignorance, were to give up and deliver possession of said premises to complainant June 1, 1890, and, although said contract was in fact acknowledged by said defendants, said notary public neglected to affix to the same a certificate of acknowledgment. It is then ordered, adjudged, and decreed that this contract be reformed and rectified so as to read: ‘That the...