Gilbreath v. Dilday

• Decision Date: 29 October 1894
• Citation: 38 N.E. 572,152 Ill. 207
• Parties: GILBREATH v. DILDAY.
• Court: Illinois Supreme Court

152 Ill. 207

38 N.E. 572

GILBREATH

v.DILDAY.¹

Supreme Court of Illinois.

Oct. 29, 1894.

Appeal from circuit court, Jackson county; Joseph P. Robarts, Judge.

Bill by Simon Dilday against Whitney Gilbreath, the county of Jackson, and others, to establish title and set aside a tax deed. Complainant obtained a decree. Defendant Gilbreath appeals. Affirmed.Hill & Martin, for appellant.

H. Clay Horner, for appellee.

PHILLIPS, J.

This was a bill in chancery, filed by Simon Dilday, appellee, against the county of Jackson, Whitney Gilbreath, appellant, and others, alleging that said county was seised in fee of N. 1/2 N. W. 1/4, section 2, township 9 S., range 5 W. third P. M., in said county, in 1855, as swamp land; that on May 3, 1855, said county of Jackson sold said land, with other land, to William McCollough for $114.80, paid by him, and attempted to convey the same to him by deed, which was executed as required by law in all respects, except that, by an oversight of the county clerk who executed the conveyance for the county, the seal of the county was not affixed thereto; that, by a regular chain of conveyances, the land in controversy, 57 1/2 acres off of the north end (side) of said N. 1/2 N. W. 1/4, section 2, township 9 S., range 5 W. third P. M., came to appellee; that one link in the chain of title is a sheriff's deed, to which the sheriff did not attach a seal; that in every other respect the chain of title is correct; that such possession of said land was had by appellee and his grantors as the overflowed nature of the land permitted, from the date of purchase from the county, for a great many years; that the land was assessed for taxation to this claim of title since the sale by the county in 1855; that appellant got possession of said land under a tax deed which is alleged to be void; that appellee brought suit in ejectment against appellant in 1890, and failed because of the lack of seals to the county's and sheriff's deed, of which he was then first apprised; that he demanded a deed from the county, which was refused; that he then filed this bill to correct the errors or omissions in said deed, claiming the equitable, and asking for the legal, title, and asking the removal of appellant's tax deed as a cloud on his title, tendering to appellant the taxes paid by him, but demanding an account of the rents and profits. The county answered, not denying the material averments of the bill. Appellant answered, but made no claim for permanent improvements, alleging laches, etc. The circuit court entered a decree, substantially as prayed for, from which appeallant alone appeals, assigning various errors.

The county of Jackson sold the land in controversy, as swamp land, to one William McCollough, for a money consideration paid to it by him, and attempted to convey the land to him by deed, which deed was defective in the failure of the county clerk to attach the seal of the county thereto. McCollough went into possession of this land under said deed, improved it, and tried to drain it; he and his grantees being in possession of the land under said deed for many years, paying the taxes and assessments levied on the same. One link in the chain of title of appellee is a sheriff's deed, to which the sheriff failed to attach a seal. No question is made as to the regularity of the proceedings leading up to this deed. These defects in the title were not known to appellee until brought to his notice on the trial of a suit in ejectment brought by appellee against appellant; appellant claiming title and possession under a tax deed. The bill in this case was filed within a year after the discovery of these defects. That this was swamp and overflowed land at the time it was sold to McCollough the proof is conclusive. Appellant and all the witnesses say that this has always been swamp land, the bottom of a pond, and worthless till drained. The county sold this land, and attempted to convey it, as swamp land. In Railroad Co. v. Smith, 9 Wall. 95, the supreme court of the United States held that under the act of congress the title to swamp and overflowed lands became, ipso facto, vested in the state, and that it could not be deprived thereof because the secretary of the interior had neglected his duty, and failed to furnish the state with the evidence, as he was directed to do by the act, as to what lands came within the description of ‘swamp and overflowed lands,’ but that such fact could be proved by any witnesses whose personal knowledge would enable them to testify as to the character and condition of the tracts. In Killer v. Brickey, 78 Ill. 133, it was held that the act of congress of September 28, 1850, vested the title to these lands in the state without any further act being done, and that the state, having competent authority, passed the title to the counties by act of the legislature. Sess. Laws 1852, p. 178, § 1; Sess. Laws 1854, p. 21, § 12. In Railway Co. v. McDougal, 113 Ill. 603, it was held to be established that the county would be absolutely invested with the title to the land, whether the certificate of the auditor, which is made evidence of the fact by the act of the legislature of 1854, was granted or not, and that, without the auditor's certificate, parol evidence would be competent to prove the character and condition of the land. The objection to the auditor's certificate to the county that this was swamp and overflowed land, because...