Trapp v. Gordon

Decision Date16 April 1937
Docket NumberNo. 23358.,23358.
Citation7 N.E.2d 869,366 Ill. 102
PartiesTRAPP et al. v. GORDON et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Suit by August M. Trapp and others against Robert D. Gordon and others. From the decree, the defendants appeal and the plaintiffs assign cross-error.

Affirmed in part, reversed in part, and remanded with directions.Appeal from Circuit Court, Cook County; John J. Prystalski, judge.

Fisher, Boyden, Bell, Boyd & Marshall, of Chicago, for appellants.

Heinemann & Langsett, of Chicago, for appellees.

ORR, Justice.

We must determine in this case whether the circuit court of Cook county, in entering a decree foreclosing a purchase-money mortgage of $80,000, properly denied the defendants, part of whom were not mortgage debtors, their claim to a perpetual easement of right of way across the mortgaged premises. A synopsis of the facts and pleadings will aid in understanding and deciding of the issues involved.

In 1929 the plaintiffs below, known collectively as the Trapp heirs, were the owners of a rectangular tract of 15 acres of land adjacent to Hibbard road, in Winnetka. Two acres in the southeast corner were improved with a residence and its appurtenances. The remainder was vacant acreage. Early that year Robert D. Gordon, Raymond E. Durham, and Laird Bell agreed to purchase the unimproved 13 acres for $16,000 per acre, one-half to be paid in cash and the remainder to be evidenced by mortgage notes. Pursuant to these negotiations the Trapp heirs conveyed the improvedproved 2 acres to a third party, who immediately reconveyed the same to Lillie M. Trapp, one of the heirs, who is not a party to this action. By deed dated the same day, January 29, the Trapp heirs conveyed the 13 acres to the Chicago Trust Company as trustee, the three vendees, Gordon, Durham, and Bell, being the beneficiaries. Gordon, or his wife, Louise, purchased for $48,000 cash the 3 acres in the northwest corner of the tract, and the trustee conveyed this tract, free of encumbrance, to Louise Gordon. On February 1 the trustee, acting in obedience to instructions mutually agreed upon by all the parties on January 29, conveyed the remaining 10 acres of the tract to the Chicago Title & Trust Company by trust deed, receiving $80,000 cash and mortgage notes for $80,000, to hold as trustee for the Trapp heirs. The trust deed provided for the release of parcels from the lien by payments at the rate of $8,000 per acre, as the three mortgagors expected to subdivide and sell the 10 acres in separate portions. The deed to Louise Gordon was never recorded and was not produced at the hearing before the master, being, presumably, lost or mislaid. No easement or reservation of a right of way was mentioned in any of the above instruments.

The land surrounding the 13 acres was owned by the Trapp heirs and third persons. The 3 acres purchased separately and entirely paid for by the Gordons was in the northwest corner of the 13-acre tract and wholly inaccessible to any road unless an easement were provided by agreement. Likewise, upon the contemplated subdivision of the 10-acre tract, for which release provisions were made in the trust deed, there was no way of entrance for any purchaser except those who might purchase the lots immediately adjacent to Hibbard road. To remedy this situation, the defendants claim that it was orally agreed among the parties prior to closing the deal, that Gordon would build a concrete road 30 feet wide through the middle of the tract, from the corner of his 3-acre plot to Hibbard road. Part of this concrete slab, 12 feet in width, was to extend over the land retained by Lillie Trapp, the remaining 18 feet in width to be on land held in trust for Gordon, Durham, and Bell. It was also agreed that the buyers would install underground conduits for telephone, light, gas, and sewers, and all of these road and utility services were to be available for use by the owners of the Trapp lot without payment of any construction costs. Defendants further allege that it was understood that these easements for roadway and other purposes were to be specifically reserved from the lien of the purchase-money mortgage for the benefit of purchasers of individual lots, but that through an oversight and inadvertence the instruments were prepared and executed without these reservations.

In the spring of 1929 Gordon began the construction of a home on his 3-acre lot costing in excess of $250,000, and also constructed the concrete roadway and installed the conduits at an expense of over $20,000. No objection was made by the Trapps to the laying of this road, 12 feet extending over the line of Lillie Trapp's 2 acres, and it has been used ever since as the sole means of access to the Gordon home. In May, 1930, Louise Gordon died intestate, leaving her husband and four minor sons as her heirs at law, all of whom are defendants and appellants.

Upon default in payment of the $80,000 trust deed covering the 10 acres foreclosure proceedings were begun. To the bill of foreclosure the defendants filed verified answers, contending the plaintiffs were not entitled to a decree free and clear of the right of way to the Gordon tract for three reasons, i. e., (1) that the Gordon tract would be isolated from the public highway with no way of ingress and egress except over the 10-acre tract, therefore the circumstances gave rise to an easement by necessity; (2) that an oral agreement existed between the vendors and vendees for the construction of the road, confirmed by the actual construction of the road, thus removing the case from the operation of the statute of frauds, and estopping plaintiffs, now seeking affirmative relief, from denying the existence of the easement; (3) through mutual mistake of the parties to the trust deed there was a failure to except from the lien of the mortgage the easements in favor of the Gordon tract and the future purchasers of other tracts, therefore such mistake was subject to correction by reformation of the instrument until the right was cut off by the intervention of a bona fide purchaser for value, and was available against the plaintiffs, who were parties to the original transactions.

Issues were joined on the answers and the case was referred to the master. The defendants made the following offers of proof: (1) The construction of a roadway,with 12 feet thereof projecting over the property of Lillie Trapp for the full length of her north line, from Hibbard road on the east line of the 10-acre tract, running west through the middle of this tract to the southwest corner of the Gordon tract; (2) that in May, 1929, Lillie Trapp as the owner of the southeast 2 acres, Louise Gordon and Robert Gordon as the owners of the northwest 3 acres, and the Chicago Trust Company as the trustee and owner of the mortgaged 10 acres, executed a plat dedicating an easement covering the roadway, which was never recorded or the dedication legally completed; (3) that in 1933, Gordon, as the administrator of the estate of Louise Gordon, deceased, gave a perpetual easement to the Illinois Bell Telephone Company in the roadway for conduits; (4) that it was orally agreed between the Trapp heirs and Gordon, as part of the original transaction, that he should have the right and duty at his own expense to build the roadway as subsequently built, for the benefit of all the parties; (5) that by mutual mistake of fact the easement was not reserved in the mortgage trust deed, or express grant thereof inserted in the original deed from the plaintiffs to the trustee; (6) that the roadway was constructed with the knowledge of the plaintiffs and without their interposing any objection thereto; (7) that no way of ingress or agress exists except over the mortgaged 10 acres; (8) that the parties were represented by a common broker, his commissions being paid by the plaintiffs, who could also testify, with Gordon, as to the various agreements.

The master in chancery indicated by his rulings that the three propositions first above mentioned were untenable as a matter of law, and held that all transactions prior to the deed merged therein. The defendants endeavored to secure an order of the circuit court directing the master to receive the proof offered in support of the three propositions. The court refused to grant the order, stating that the three propositions, if true, did not entitle the defendants to relief. A decree was entered in accordance with the recommendations of the master, awarding foreclosure free and clear of the roadway easement. As the case now stands, if undisturbed, the owners of the Gordon tract will have to pay to the plaintiffs the mortgage indebtedness of $80,000 if they hope to continue in the use of the roadway, although their tract is not subject to the mortgage. The validity of the mortgage trust deed or the amount due upon it is not questioned.

Our jurisdiction on direct appeal of a suit brought to foreclose a mortgage, where an easement of right of way across the mortgaged premises is directly involved, must first receive consideration. As seen above, plaintiffs joined certain persons as defendants in this proceeding who were not mortgage debtors, but who had or claimed an easement. The title to this purported easement was squarely put in issue by the pleadings, denied by the trial court, preserved for review by assignments of error, and pressed for consideration...

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