Foote v. City of Chicago

• Decision Date: 06 April 1938
• Docket Number: No. 24362.,24362.
• Citation: 368 Ill. 307,13 N.E.2d 965
• Parties: FOOTE v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

368 Ill. 307

13 N.E.2d 965

FOOTE

v.CITY OF CHICAGO.

No. 24362.

Supreme Court of Illinois.

Feb. 16, 1938.

Rehearing Denied April 6, 1938.

Partition suit by Etta W. Foote against the City of Chicago and others. After the death of Etta W. Foote, Ralph A. Foote and Andrew J. Foote were substituted as her only heirs at law. Arza Hustead Hitt filed a cross-complaint. From a decree of dismissal, Ralph A. Foote and Andrew J. Foote appeal.

Affirmed.Appeal from Superior Court, Cook County; Francis B. Allegretti, judge.

Charles E. Carpenter and H. A. Barnhardt, both of Chicago, for appellants.

Richard S. Folsom, Frank S. Righeimer, Edward R. Johnston, and Albert E. Jenner, Jr., all of Chicago, for appellees.

STONE, Justice.

On December 27, 1922, Etta W. Foote, now deceased, filed a bill in the superior court of Cook county against the City of Chicago and the Board of Education of that city, seeking partition of forty acres of land lying on the northwest side of Chicago, in which she claimed an undivided one-half interest in fee. Following her death during the pendency of the suit, her sons, Ralph A. and Andrew J. Foote, were substituted as her only heirs at law. They prosecuted the suit, evidence was heard before the master and on his report the chancellor dismissed their bill for want of equity. From that decree they have appealed.

Etta W. Foote, and later, appellants, by their amended bill, based their claim on the will of John C. White, deceased, a brother of Etta W. Foote, and upon a conveyance from the heirs of one William Ewing. Their bill sets out, in detail, their claim of title on what they allege to be an unbroken chain from the United States government. They allege that appellee, the City of Chicago for the use of the schools, owns a one-half interest in this forty acres, and that Rosa and Anna Hitt also claim an interest in the remaining undivided one-half. Arza Hustead Hitt, grantee by quitclaim deed of Rosa and Anna Hitt, filed a cross-complaint in the superior court, but did not appeal from the decree.

Appellees answered the amended bill denying the allegations of the appellants and asserted a fee-simple title to the entire tract of forty acres, in trust for the use of schools, by virtue of mesne conveyances from the United States government, also by virtue of adverse possession for the statutory period of twenty years under section 1 of the Statute of Limitations, Ill.Rev.Stat.1937, c. 83, § 1, and more than seven years under color of title, as provided in section 4 of that act, Ill.Rev.Stat.1937, c. 83, § 4.

The facts of this case, so far as they affect the chain of title, are in many respects the same as those in City of Chicago v. Hitt, 334 Ill. 619, 166 N.E. 517, and it is unnecessary to again set them out in detail here. The similarity between the facts of the Hitt Case and the one before us lies in the fact that one Charles Pettit who took the forty acres here involved by warranty deed from Edward McConnell, holder of the receipt and certificate of entry from the United States government, though McConnell did not then have the land patent, is the same Charles Pettit who also took the eightyacre tract involved in the Hitt Case by deed from one John L. Wilson, holder of the receipt and certificate of entry of the United States government by assignment from one Isaac K. Palmer. Pettit mortgaged and disposed of both tracts by the same instruments. There is this difference, however, in the origin of title as to the two tracts. McConnell, after his deed to Pettit, received the patent to the forty acres and made no attempt to further dispose of the title, while, as to the eighty acres involved in the Hitt Case, Palmer, who took the certificate of entry or receipt in his own name and assigned it to Wilson, also received the patent because the certificate and assignment thereof were not delivered to the Commissioner of the General Land Office, but were lost or destroyed. Palmer issued his deed for the land to another grantee and thus started a chain of title. In the meantime Wilson, though not having the patent, had also started another chain by executing a deed to Charles Pettit. The importance of the difference in these chains of title affecting the two tracts lies in the fact that, while in the Hitt Case the agent, Palmer, at no time assigned his patent to Wilson but deeded the property elsewhere, in the case before us McConnell, who took the entry receipt and certificate in his own name and later received the patent, deeded the forty acres to Pettit previous to the receipt of the patent. It is not denied that the patent, when received, enured to the benefit of McConnell's successors in title, by reason of the warranty in his deed to Pettit.

As set out in the facts in the opinion in the Hitt Case, Pettit executed a certain mortgage for $1,500 to one Richard J. Hamilton, as school commissioner. This mortgage not only covered the eighty acres which Pettit had taken by deed from Wilson, but also the forty acres conveyed by Edward McConnell, the patentee, to Pettit. As this mortgage was not paid, Hamilton foreclosed the same by scire facias proceedings instituted October 31, 1837. A sheriff's sale was had under this foreclosure on February 27, 1844, and the land was purchased by William H. Brown, school agent, who received a deed thereto on December 11, 1846, and recorded the same on February 16, 1853. Brown, on February 12, 1853, deeded the lands to the City of Chicago for the use of schools. That deed was recorded February 15, 1853. Before the foreclosure sale Pettit had conveyed his interest in the property, subject to the mortgage, to one Henry Moore, and appellants claim their title through various mesne conveyances from him. Moore conveyed, by quitclaim deed, to one Isaac R. Hitt, who, in 1876, by quitclaim deed conveyed to one Merrill Ladd, who quitclaimed to Obadiah Huse, who, in turn, deeded to John C. White, who quitclaimed an undivided one-half to one James R. Stanley and the other to William G. Ewing, in trust, later devising that one-half to the original plaintiff in this cause, Etta W. Foote. After Hitt's quitclaim deed to Ladd, Hitt's interest in the premises was sold at bankrupt's sale and by mesne conveyances that interest, whatever it amounted to, was conveyed to the City of Chicago for the use of schools.

Three questions are presented in this case: (1) Whether the appellees have had adverse possession of the forty acres here involved for the statutory period of twenty years; (2) whether they have had possession for seven years under color of title; and (3) whether their title, running back to the government, constitutes a good title. All of these points are disputed by appellants. They say, first, that the appellees are cotenants with appellants and their possession has not been such as to defeat appellants' claim, and that appellees' record title is not good.

It was held in the Hitt Case that as Pettit did not have the legal title to the eighty acres, not having the patent, scire facias was not effective to foreclose his mortgage to Hamilton so as to give the legal title to a purchaser at the foreclosure sale. The question of adverse possession was not in the Hitt Case. The facts showed that the defendants and not the city were, and at all times had been, in possession of the land. It is not claimed, therefore, that that case is decisive of the rights of the parties here. The property is not the same, and, as we have seen, the facts concerning the method by which Charles Pettit acquired the two properties are not identical.

We will consider first the appellees' defense of adverse possession for the statutory period of twenty years under section 1 of the Statute of Limitations. This act provides that ‘no person shall commence an action for the recovery of lands, nor make an entry thereon, unless within twenty years after the right to bring such action or make such entry first accrued, or within twenty years after he or those from, by, or under whom he claims, have been seized or possessed of the premises, except as hereinafter provided.’ The evidence concerning adverse possession is undisputed, as appellants offered no evidence on that issue, nor was any attempt made to contradict or impeach appellees' evidence of possession. It is not contended on behalf of appellants that appellants, or any of their predecessors, were ever in possession of the premises or any part of them. It is, however, argued that the facts do not show such adverse possession as could ripen into prescriptive title under the Statute of Limitations.

The master and chancellor found, and the evidence of appellees is, that on April 10, 1879, the Board of Education, under the power expressly given by the statute, Ill.Rev.Stat.1937, c. 122, § 156, leased the entire tract to one Laechele for a term of five years from February 8, 1879, to February 8, 1884, at an annual rental of $100. Laechele had been in possession of a small portion of it for some years before this lease. This lease was renewed on December 10, 1883, for a period of five years at an annual rental of $200. At the end of the second period another renewal was made for a period of three years at an annual rental of $250. This lease, when it expired in 1891, was not renewed. Witnesses,...