delivered the opinion of the court:
This is аn appeal from an order which vacated a consent decree. The order was entered pursuant to a petition filed under section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, sec. 72).
In August 1971, six neighbors: Anthony Filosa, Angelo Morelli, Willis M. Hoffbeck, Martin D. Calis, Paul Pennick and Joseph Graber, entеred into a contract with the defendant, Carlo Pécora, to buy a parcel of unimproved land, approximately 600 feet long and 100 feet wide, which bordered on the rear of their six homes. The contract, which was not recorded, provided for Pécora to convey the purchased land in separate deeds and that each deed would be contiguous with the lot of each of the six neighbors.
In September 1971, Pécora contracted to sell a larger tract of land, including the 600-by-100-foot strip, to two real estate developers, Michael J. Lowy and John A. Canna, who intended to construct several condominium apartment buildings on the property.
When Pécora failed to convey the realty they had purchased, Filosa, Morelli, Hoffbeck and Calis sued him for specific performance. Pennick and Graber chose not to. join in the litigation.
Péсora answered the complaint and Lowy and Canna intervened. Pécora charged that the time limit for the completion of the plaintiffs’ purchase had expired and that the required earnest money had not been deposited. The intervenors alleged that the plaintiffs’ contrаct was invalid and that they did not learn of the contract until their petition to rezone the entire tract of land from a single-family residence district to one which would permit a condominium development was about to be heard by the Zoning Board of Appeals of Cook County. The plaintiffs denied Pécoras affirmative defenses and the intervenors’ allegations.
During the trial on the issues, settlement negotiations were held between the attorney for the plaintiffs and the attorney who represented Pécora, Lowy and Canna. Under the aegis, of the court, an agreement to settle the dispute was reached, subject to its being reduced to writing. Both attorneys participated in the drafting of the agreement. Each prepared a draft, exchanged it with the other attorney, and each made comments and suggestions on the other’s draft. The final agreement, drawn by the plaintiffs’ counsel, included the suggestions of the defendant’s and intervenors’ counsel.
The final settlement provided that the 600-foot strip of land would be narrowed from 100 to 25 feet and that the four plaintiffs and Pennick and Graber would receive individual deeds for 25 feet behind each of their hоmes and that the six of them would receive $6,000 in damages. The agreement further provided that in the event the intervenors failed to apply for building permits within 120 days after the rezoning of the property was obtained, the 600 x 100-foot parcel would pass to the plaintiffs and their two neighbors for their contracted purchase price subject only to current real estate taxes. A consent decree incorporating the terms of the agreement was entered on May 9, 1972.
For various reasons, including the hospitalization of Pécora, the intervenors’ counsel did not show the consent decree to Pécora or the intervenors until the first week of June. They protested that building permits could not be obtained within 120 days of the rezoning. On June 9, 1972, their attorney filed a motion to vacate or modify the decree. On July llfh he filed a petition under section 72 of the Civil Practice Aсt to vacate the order of May 9. He also filed an amended complaint and an amended section 72 petition naming Pennick and Graber as defendants. The petition was continued several times and compromises were discussed, but none was agreed upon.
The section 72 рetition asserted that there was fraud in the procurement of the consent decree and that it was void because it disposed of the rights of Pennick and Graber over whom tire court had no jurisdiction. The petition was granted and the decree was vacated.
The facts concerning the preparation and presentation of the decree do not support the intervenors’ charge that it was procured by fraud. The gist of the charge was that the plaintiffs did not honor an oral understanding to modify the time restriction for the obtaining of the building permits; that the 120-day limitatiоn was unreasonable and unconscionable; that it proved to be unsatisfactory to the intervenors who needed 240 days because of the time-consuming prerequisites to the acquisition of building permits such as soil testing and securing environmental control permits. The petition alleged thаt the attorney for fire intervenors only glanced cursorily at the decree and relied upon the representation of the plaintiffs’ attorney to amend the restriction if the intervenors so desired. In seeming contradiction, the petition also declared that the “settlement agrеement was the entire terms agreed on between the parties.”
The plaintiffs’ answer denied any understanding to modify the decree. The plaintiffs stated that the final written agreement was the joint effort of both attorneys, and that their attorney advised opposing counsel that he had no аuthority to change the terms of the written agreement without the approval of all his clients. Exhibits were attached to their answer which substantiated their contentions. One exhibit proved that the original time limitation was 60 days and that it was increased to 120 days at the suggestion of the interveners’ cоunsel. Another showed the interpolations made by him in the drafts of the agreement, and the order which dismissed the case was in his handwriting. The order stated that the dismissal was “on stipulation of the parties through their respective attorneys” and was “with prejudice to all the parties as said matter hаs been settled.”
A consent decree is based upon the agreement of the parties. It may supersede both pleadings and evidence and even go to the extent of pointing out and limiting the relief to be granted. Such a decree is conclusive upon the parties and cаnnot be amended or varied without the consent of each of them. (People ex rel. Stead v. Spring Lake Drainage & Levee District (1912),
A written contract cannot be set aside on the ground that it is fraudulent where the alleged fraudulent provision appears on the face of the contract so that it was equally open to the knowledge of both parties, or where the party charged with the frаud neither urged its acceptance upon the other nor misled or induced the other to accept and execute it by any statement or misrepresentation as to its meaning or legal effect. (Paine v. Doughty (1911),
The interveners’ aHegation of fraud is unsubstantiated and untenable. They would have us believe that an important right to amend the terms of the consent decree was left out of the agreement and embodied in a gentlemen’s understanding between counsel. Yet their attorney assured the trial court that the agreement as written constituted the entire agreement between the parties. The interveners are bound by the written agreement and the representation made to the court by their attorney.
The purpose of a petition filed under section 72 of the Civil Practice Act is to obtain relief from final orders, judgments and decrees. (Ill. Rev. Stat. 1969, ch. 110, par. 72(1).) The petition must be filed no later than two years after the entry of the decree (sec. 72(3)) and is available to correct errors appearing upon the face of the record or to bring before the court facts not appearing in the record which could not reasonably have been disclosed at or prior to the time the decree was entered and which, if known to the court at the time the decree was entered, would have prevented its entry. Decrees are not set aside simply because a party аdversely affected by the decree comes into court and boldly asserts that it was premised on false facts. (Bennett v. Gollant (1970),
• 7, 8 The argument is made that the consent decree was void because it disposed of the property rights of Pennick and Graber who were not parties to the suit. A decree is void if the court lacked jurisdiction over either the subject matter or the parties to a suit, and a void decree may be attacked directly or collaterally at any time in any court. (Escue v. Nichols (1948),
The contract with Pécora called for the 600' x 100' parcel of land to be conveyed to the six neighbors in six separate deeds. Each buyer was to receive a deed for the land contiguous to his own property and would be required to pay the real estate tax only on that portion of the land which he received. There was no joint interest in the tract of land as a whole. The determination of whether a contract is joint or several or joint and several is made by considering the intentions of the parties as revealed by the lаnguage of the contract and the subject matter to which it relates. (Annot,
In Combs, adjacent neighbors contracted to pay for street paving in front of their homes by the foot and wrote next to their names in the contract the number of feet at the front of their respective property. The court found that each neighbor thereby agreed to pay for a definite number of feet of paving and held that the contract was several. In Corrington v. Pierce (1888),
The contract between Pécora and the six neighbors was several and each of the neighbors could-enforce his interest separately. When Pecora did not comply with the contract, four of the six sued him for specific performance. The decision of Pennick and Graber not to enforce the contract as to their portions of the land did not affect the right of the others to complete their purchase.
While Pennick and Graber were not necessary to an adjudication of the plaintiffs’ rights under the contract, it would have beеn well if they had been named as defendants. The failure of the plaintiffs to so name them, however, did not vitiate the plaintiffs’ right to relief. Moreover, their interests were protected by the plaintiffs. The decree provided that they, as well as the plaintiffs, were to receive deeds tо that portion of the disputed land contiguous to their property and that, in addition, each one would receive $1,000.
Although Pennick and Graber had been unwilling to participate in the effort to obtain their share of the land, after the decree was entered they notified the intervenors that they did not consider themselves bound by the decree. The intervenors, to avoid any cloud on their tide, thereupon amended the intervening complaint and the section 72 petition and made them party defendants. What contractual right they may have to the land behind their homes must be determined between them and the intervenors.
The court had jurisdiction of the plaintiffs and their interests under the Pecora contract. The parts of the decree affecting diem are separable from the parts affecting Pennick and Graber. The decree is not void as to the plaintiffs; they have a valid and binding contract with the interveners, confirmed by the consent decree. They may pursue the remedies stated in the decree.
The order vacating the consent decree is reversed.
Reversed.
McNAMARA, P. J., and McGLOON, J., concur.