Comstock v. Matthew Henneberry.

• Decision Date: 30 September 1872
• Citation: 66 Ill. 212,1872 WL 8544
• Parties: JOHN COMSTOCK et al.v.MATTHEW HENNEBERRY.
• Court: Illinois Supreme Court

66 Ill. 212

1872 WL 8544 (Ill.)

JOHN COMSTOCK et al.

v.MATTHEW HENNEBERRY.

Supreme Court of Illinois.

September Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Marshall county; the Hon. SAMUEL L. RICHMOND, Judge, presiding.

Messrs. BANGS & SHAW, for the appellants.

Messrs. BURNS & BARNES, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The complainant derives his claim of title by deed of the premises from Mieer Clark, patentee, to Jehosaphat Eldred, made in 1818 or 1819, and recorded in June, 1820, and a commissioner's deed to himself of the premises in 1863, on a commissioner's sale of the same under a decree in a partition suit between the heirs of Eldred. He also claims the land under the seven years limitation law, by payment of taxes under color of title while the land was vacant and unoccupied. The bill claims that Comstock fraudulently, and with notice of appellee's title, obtained a deed from the heirs of Clark, the patentee, in 1868, and that it ought to be removed as a cloud on complainant's title.

The proof shows that, in 1861, Comstock leased the land to one Keefe for five years, who took possession under the lease, and also admitted one Kane into possession with him; that they together put a house on the land, and broke and fenced it, as agreed in the Comstock lease. In November, 1863, appellee (the complainant below) executed to Kane a lease of the land; and thenceforward, Kane claimed to hold under the appellee.

At the end of the five years, Comstock brought a suit of forcible detainer against Kane, which appellee defended. Comstock recovered judgment, and was put in possession of the premises by the sheriff on the evening of the 19th of February, 1868.

Comstock, on returning to the premises on the next morning from a near neighbor's, where he had gone for the night, found that the tenants of the appellee had, during the night, broken into the house and retaken possession, and they held it with the strong hand against Comstock and the sheriff. A suit of forcible entry and detainer was brought by Comstock for these acts. Appellee asked, also, to have this suit enjoined, and that his title be quieted.

The question is raised whether this is a proper subject of equitable jurisdiction.

The titles here are legal titles. A court of law is the proper tribunal to determine which of them is the best. It is only in extraordinary cases that a court of chancery will assume the trial of such titles. The holder of a legal title, not in actual possession, can not, as a general rule, maintain a bill to quiet his title, and to compel a relinquishment of adverse claims. A recent statute has changed that rule as respects vacant and unoccupied land.

The reason why the party out of possession can not maintain such a bill, is that he may bring an action at law to test his title, which, ordinarily, a party in possession can not do. Alton M. and F. Ins. Co. v. Buckmaster, 13 Ill. 201; Harris v. Smith, 2 Dana, 10; Trustees v. Gray, 1 Littell, 147; Smith v. McConnell, 17 Ill. 135; Shays v. Norton, 48 Ill. 100; Banon v. Robbins, 22 Mich. It is true, that in Kennedy v. Northup et al. 15 Ill. 149, this court entertained jurisdiction to set aside a deed fraudulently obtained, where the defendants were in possession; but it was on the ground of fraud where, with knowledge of a prior unrecorded deed, a second one was fraudulently obtained from the same grantor and first recorded, for the purpose of defeating the title acquired under the first deed.

The circumstances here are quite different. The deed from the patentee to Eldred was immediately recorded. A long time afterward, Comstock purchased and obtained a deed from the heirs of the patentee, claiming that the...