Gerbracht v. Lake Cnty.

• Decision Date: 08 February 1928
• Docket Number: No. 16494.,16494.
• Citation: 160 N.E. 1,328 Ill. 399
• Parties: GERBRACHT v. LAKE COUNTY.
• Court: Illinois Supreme Court

328 Ill. 399

160 N.E. 1

GERBRACHT

v.LAKE COUNTY.

No. 16494.

Supreme Court of Illinois.

Dec. 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.

Appeal from Circuit Court, Lake County; Claire C. Edwards, Judge.

Ashbel V. Smith, State's Atty., of Waukegan (Sidney H. Block, of Waukegan, and Albert L. Hall, of Chicago, of counsel), for appellant.

E. V. Orvis, of Waukegan (John T. Murray, of Chicago, of counsel), for appellee.

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, 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 supplemental bill, in 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 heading:

‘Second-Amending the second paragraph. After the insertion above mentioned insert the following: ‘Your oratrices would further represent and show that the complainant is informed, and so states the facts to be,’' that the county of Lake claims some interest or title in and to that portion of the lands involved between the meander line and the center of the stream by virtue of the Federal Swamp Land Act passed in 1850, but, if it ever had any interest, it has long since lost the same by abandonment for a period of 50 years, and by reason of accepting taxes on the same from Rose and her immediate grantors, and by reason of valuable improvements made on the same by ‘your oratrices and her assigns,’ and that the county has abandoned its claim and is estopped to claim any interest against Rose.

The county of Lake on March 14, 1921, filed a general demurrer to the amendment to the bill, which was afterwards withdrawn. On December 29, 1921, the county filed a general answer to the bill of complaint and amendment thereto, stating that it is not advised concerning the matters and things charged in the bill and amendment thereto, asking that Rose be required to make strict proof of the matters and things therein alleged, denying that she is entitled to the relief prayed, or any part thereof, and praying the same advantage of the answer as if the county had pleaded or demurred to the bill of complaint and amendment thereto, etc. The cause was then referred to a special master in chancery, to take proofs, reduce the testimony to writing, and report his conclusions to the court.

On October 19, 1923, the special master filed his report of the evidence taken, showing that no proof was offered by the county of Lake. The special master found that Gertrude Gerbracht died in the year 1916 and that her last will and testament was duly filed for probate. The report does not show that the will or any copy thereof was put in evidence, and the record does not show that such will was ever introduced in evidence. Neither the report of the master nor the record discloses who were the heirs of the testatrix at the time she died or at any other time. The master found that Rose Gerbracht is the owner in fee simple and was in possession of all the lands described as being in tracts A and B, and that she and her predecessors in title have been in the open, notorious, exclusive, continuous, and adverse possession of all the lands for a period of more than 20 years last past, claiming title as against the world, and that during all that time she and her predecessorshave paid all taxes and assessments legally levied against the lands and each parcel thereof. The master found that all the other allegations of the bill had been proved, and recommended to the court that the prayer of the bill be granted. On October 19, 1923, the court entered a decree in accordance with the recommendations of the master. Neither the decree nor the master's report recites the contents or provisions of the alleged will, or who constituted the heirs of the testatrix.

On December 21, 1923, there was an order entered by the court vacating the decree theretofore entered on motion of the county of Lake. On March 27, 1924, an order was entered that objections to the master's report stand as exceptions to the same. On August 13, 1924, there was a stipulation entered into by the county of Lake and Rose Gerbracht to the effect that the cause be submitted for consideration to Judge Reynolds; that said judge pass upon and decide all matters of law and fact covered by the exceptions to the master's report the same as if matters covered by the exceptions had...