160 N.E. 1 (Ill. 1927), 16494, Gerbracht v. Lake County

Docket Nº:16494.
Citation:160 N.E. 1, 328 Ill. 399
Opinion Judge:[328 Ill. 400] DUNCAN, J.
Party Name:GERBRACHT v. LAKE COUNTY.
Case Date:December 21, 1927
Court:Supreme Court of Illinois
 
FREE EXCERPT

Page 1

160 N.E. 1 (Ill. 1927)

328 Ill. 399

GERBRACHT

v.

LAKE COUNTY.

No. 16494.

Supreme Court of Illinois

December 21, 1927

Rehearing Denied with Modification Feb. 8, 1928.

Bill by Rose Gerbracht against the County of Lake and others. From a decree for complainant, defendant county appeals.

Reversed and remanded.

[328 Ill. 400] DUNCAN, J.

This is an appeal from a decree entered in the circuit court of Lake county, establishing and quieting title in appellee, Rose Gerbracht, to certain real property in Lake county, Illinois.

The original bill was filed by Rose Gerbracht and her mother, Gertrude Gerbracht. It prayed for a decree quieting the title of Rose Gerbracht to land referred to in the record as tract A, which is described as the northeast quarter of the southeast quarter and the south half of the southeast quarter of section 21, lot 2 in section 21, and lots 4 and 6 in section 22, the three numbered lots comprising all the land lying east of what is known in the record as the 'government meander line' and west of the thread of the stream of Fox river, according to a plat of the survey of Alexander Wolcott on file in the general land office of the United States, and quieting the title of Gertrude Gerbracht to land referred to in the record as tract B, which is described as the northeast quarter of the northeast quarter and the north half of the southeast quarter of the northeast quarter of section 28, the north half of the northwest quarter, the north half of the south half of the northwest quarter, and the north half of the southwest quarter of the northeast quarter of section 27, all that part of the northwest quarter of the northeast quarter, all that part of the northeast quarter of the northeast quarter, and all that part of the north half of the southeast quarter of the northeast quarter that lies west of Fox river, in section 27. All of the lands of both complainants are in township 46 north, range 9 east of the third principal meridian.

There were a great number of parties made defendant to the bill, and of whom were defaulted, except the county of Lake. Subsequent to the filing of the bill, it was amended, and as amended it contained the following allegations:

Appellee, Rose Gerbracht, is the owner in fee simple and in possession of the lands described as being in tract A, [328 Ill. 401] and Gertrude Gerbracht is the owner in fee simple and in possession of the lands described as being in tract B. Gertrude is the mother of appellee, and they joined in the bill for the purpose of clearing the title to their separate premises, to save costs and expenses. The title of record to all the lands in tracts A and B that lie immediately east of the government meander line and west of the center thread of the stream of Fox river is in the county of Lake, which obtained title to said lands by virtue of the Swamp Land Act of the United States of 1850 (43 USCA §§ 982-984; U.S. Comp. St. §§ 4958-4960), by which act the lands were ceded to Illinois, and by an act of the Illinois Legislature in 1854 (Laws 1854, p. 19) the lands were ceded to the county of Lake.

Complainants and their predecessors in title have been in open, notorious, exclusive, adverse, and continuous possession of their respective lands, claimed by the county of Lake, for more than 20 years prior to the filing of the bill and have paid all taxes levied against said lands during that time. The county of Lake during twenty years and more did not exercise any right or interest in said lands, and it has no title or interest in the same, but has lost the right to assert its title by reason of the 20-year statute of limitations (Smith-Hurd Rev. St. 1927, c. 83, § 1), and is estopped from asserting any title thereto. It was further set forth in the bill that there were various conveyances of tracts of the lands which should be removed as clouds upon the title to said lands. The respective claims of title of the claimants which it is alleged should be removed as clouds are set forth in the bill, with the averment that the claimants have no right or title to such lands, and with the further averment that the complainants have been in the exclusive and adverse possession of the lands for a period of more than 20 years prior to the filing of the bill, claiming title to the same against the whole world. The county of Lake filed a demurrer to the bill as amended.

At about the December term, 1916, the lower court granted leave to Rose Gerbracht to file, and she filed, a [328 Ill. 402] supplemental bill, in

Page 3

which, after reciting the filing of the original bill as amended and the prayer of the original bill, etc., she made the following allegations: Gertrude Gerbracht, her mother, died in the year 1916, and her will was duly filed for probate in the county court of the county of Lake, by which she devised to Rose all her right, title, and interest in all the real estate described in said bill as owned by her, Gertrude; that the will was duly filed for probate in said county and a hearing was set for November 20, 1916; that Rose 'is now' the owner in fee and in possession of the entire property described in the amended bill as belonging to Gertrude. The supplemental bill then closes with this allegation:

'Your oratrix desires to proceed with the said amended bill of complaint as the sole and only complainant therein.'

She prayed that the parties defendant in the original bill, who are made parties defendant to the supplemental bill, be required to make full and direct answer to the same, etc., and that the supplemental bill may be deemed and taken 'as and for a bill of supplement to her said original amended bill,' etc. On March 20, 1920, the supplemental bill was stricken from the files on motion of the defendants, and the demurrer to the original bill as amended was sustained by the court, and leave was then given to Rose to proceed as sole complainant, and leave was also given her to file an amended bill, or an amendment to the amended bill. In pursuance of the leave granted, Rose filed an amendment to the original bill with the...

To continue reading

FREE SIGN UP