Harding v. Fuller

• Decision Date: 12 May 1892
• Citation: 141 Ill. 308,30 N.E. 1053
• Parties: HARDING v. FULLER et al., (two cases.) SAME v. SKINNER. SAME v. DONLAN et al.
• Court: Illinois Supreme Court

141 Ill. 308

30 N.E. 1053

HARDING

v.FULLER et al., (two cases.)

SAME

v.SKINNER.

SAME

v.DONLAN et al.¹

Supreme Court of Illinois.

May 12, 1892.

Appeal from circuit court, Cook county; LORIN C. COLLINS, Judge.

Four petitions under the Burnt Records Act, (Rev. St. 1891 c. 116, §§ 6-29,) by Henry H. Fuller, John B. Skinner, John F. Donlan, and others against George F. Harding, David Morgan, John McNab, Henry M. Shepard, trustee, and ‘all whom it may concern.’ By stipulation the four cases were heard together. The petitioners obtained decrees, and defendant Harding appeals from each decree. Affirmed.

Wm. J. Ammen, for appellant.

A. M. Pence, for appellees.

MAGRUDER, C. J.

Each of these four cases is a petition under what is called the ‘Burnt Records Act.’ There is no difference between them, except in the numbers of the lots described therein, all the lots being in Snow & Dickinson's subdivision of part of lot 2 in the subdivision of E. 1/2 S. W. 1/4 section 15, township 38 N., range 14 E., in Cook county. The questions involved are the same in one case as in the others. The pleadings are substantially the same in all the cases. By stipulation one certificate of evidence is used for the four cases, and they are submitted to this court upon the same abstracts and briefs. The defendants are George F. Harding, David Morgan, John McNab, Henry M. Shepard, trustee, and ‘all whom it may concern.’ The petitions were taken as confessed by all the defendants except Harding, who answered the same. The cases were heard upon proofs introduced by the petitioners. The defendant Harding introduced no evidence whatever. The decree in each case finds the petitioner therein to be the owner in fee simple of the lot therein described; confirms and establishes the title in the petitioner subject to the trust deed to Shepard; enjoins all the defendants from interfering with the possession of the permises, and from claiming title thereto, except through the petitioner; directs defendants, or persons holding under them, who may be in possession, to surrender the same to the petitioner; orders that, in case of failure so to surrender possession, a writ of assistance shall issue, with service of copy of the decree and of written demand for possession, and that petitioner be put in possession under the writ. The present appeals are prosecuted by the defendant Harding alone.

The main complaint made by the appellant, Harding, is that each one of these suits is an action of ejectment, brought on the equity side of the court under cover of a proceeding under the ‘burnt records act’ for the purpose of getting possession of the property without a trial of title by jury. If these proceedings are properly brought under the ‘burnt records act,’ the objection that the court establishes the title without a trial thereof by jury is without force. The question as to whether or not this act is constitutional, as depriving the parties of the right of a trial by jury, has been before this tribunal in a number of cases, and we have held that in this respect the act is a valid law. Bertrand v. Taylor, 87 Ill. 235;Heacock v. Lubuke, 107 Ill. 396;Heacock v. Hosmer, 109 Ill. 245;Gage v. Caraher, 125 Ill. 447, 17 N. E. Rep. 777. It is unnecessary to restate our views upon this subject. They are sufficiently expressed in the following extract from the opinion in Heacock v. Hosmer, supra: ‘It has been a common practice for years to file bills in equity to partition lands, and in a proceeding of that character the court has ample power to settle all conflicting titles, and that, too, without a jury. The power conferred upon a court of equity by the burnt records act is similar to a proceeding in equity for partition, and a proceeding under the former act is no more obnoxious to the constitutional provision for a jury than is a bill in equity for partition.’ It matters not what may have been the motive of each one of these petitioners in filing a petition in equity under the burnt records act. It matters not that the effect of a decree confirming the title under the act may be the same as the effect of a judgment obtained in an action of ejectment. The material question is whether the facts alleged in the petition are sufficient to give the court jurisdiction of the subject-matter. Whether the proceeding is authorized by the act will depend upon the case made by the petition, and the proofs thereunder. Flaherty v. McCormick, 113 Ill. 538; Gage v. Caraher, supra. Without comparing all the allegations of the petition with the several requirements of the act, we deem it sufficient to notice those particulars in which the appellant charges that these proceedings are unauthorized by the act.

It is contended by the appellant that there is no controversy here between himself and the appellees which grows out of the destruction of the records, but that the only controversy is as to matters pertaining to the title, which have occurred since the destruction of the records. It is alleged in the petition, and established by the proof, that the petitioners, by warrantydeeds, executed to them in 1890 by the devisees under the will of Ambrose Campbell, deceased, have become vested with the title to their respective lots, being parts of said lot 2, which Ambrose Campbell had thereto in his lifetime. The title of said Ambrose Campbell to said lot 2 was fully considered and passed upon, as between said Campbell and this appellant, in Sawyer v. Campbell, 130 Ill. 186, 22 N. E. Rep. 458. In August, 1868, Frederick A. Weage and Hiram Canfield, being the owners of said lot 2, executed trust deeds thereon. In 1877 sales were made under these trust deeds, and Campbell deraigned his title from the purchaser at said sales. After the execution of said trust deeds, and subject thereto, Weage and Canfield conveyed lot 2 to certain parties, from whom appellant deraigned his title. The bill in Sawyer v. Campbell, supra, was a bill filed in 1881, by Sawyer, who has since made a conveyance to appellant and appellant against Campbell and others, for the purpose of removing the deeds, constituting the title of Campbell as clouds upon the title of appellant and Sawyer. The controversy there was between appellant and Campbell as to their respective titles, the latter claiming title under the trust deed sales, the former claiming title under deeds made subject to said trust deeds. In that case the circuit court dismissed appellant's bill for want of equity, and we affirmed said decree of dismissal, thereby holding the Campbell title to be the better title. The petitions in these cases set out the various deeds and other proceedings showing the passage of the title from Weage and Canfield, through the trust deed sales, to the petitioners, and also the various deeds and other proceedings showing the passage of the title, subject to said trust deeds, from Weage and Canfield to appellant. The petitions also set up the substance of the pleadings and decree, and judgment of this court in said case of Sawyer v. Campbell, and charge that the legal effect of the judicial proceedings in the latter suit amounts to a bar and estoppel against appellant, so that he cannot assert the title there adjudicated upon, against the petitioners who hold under said Campbell. We are unable to see why the decision in Sawyer v. Campbell is not a final adjudication, as between these petitioners and appellant, of the title to this property, so far as it is derived from Weage and Canfield or from their grantor, Charles W. Clayton, the common source from whom both Campbell and Sawyer and Harding deraigned their respective titles. The controversy there was between the parties under whom the parties here are holding title, and involved the same question of title which is presented by this record, so far as that title is derived from the common source above named. Riverside Co. v. Townshend, 120 Ill. 9, 9 N. E. Rep. 65; Harmon v. Auditor, 123 Ill. 122, 13 N. E. Rep. 161.

Although the trust deeds were dated in 1868, before the destruction of the records in 1871, yet the sales under them were not made until thereafter, in the year 1877; and the original trust deeds were re-recorded after the great fire of 1871. If, therefore, the petitions set up no other title than that deraigned from the common source, as above stated, there would be much force in appellant's contention that the controversy here is mainly, if not wholly, as to matters of title occurring since the destruction of the records. But the petitions also allege that said Weage and Canfield ...