Harty v. Glos

• Citation: 112 N.E. 74,272 Ill. 395
• Decision Date: 07 April 1916
• Docket Number: No. 10397.,10397.
• Parties: HARTY v. GLOS et al.
• Court: Supreme Court of Illinois

272 Ill. 395

112 N.E. 74

HARTY

v.GLOS et al.

No. 10397.

Supreme Court of Illinois.

Feb. 16, 1916.

Rehearing Denied April 7, 1916.

Appeal from Circuit Court, Cook County; Frederick A. Smith, Judge.

Application by William P. Harty for registration of a land title. Decree registering title as prayed, and Jacob Glos and others, claiming under tax deeds, appeal. Reversed and remanded.

John R. O'Connor and Alben F. Bates, both of Chicago, for appellants.

Boyle & Mott and Henry E. Mason, all of Chicago, for appellee.

CARTER, J.

This was an application in the circuit court of Cook county, under the act concerning land titles, to register title to lot 18 in Harty's subdivision, in said county, in appellee, William P. Harty. The cause was referred to the examiner of titles, and his report recommending that the title be registered in appellee was approved by the court and decree entered accordingly. Appellants, claiming interests in said lot under various tax deeds, have taken an appeal from that decree.

[1] Counsel for the appellants contend that the proof did not show whether the lot in question was unoccupied at the time the application was filed, May 8, 1914. The application stated ‘the land is not occupied by any one.’ On a hearing before the examiner, James A. Miller testified that he had measured off this lot in the last of September or first of October, 1914, to see where it lay upon the ground, and found it entirely vacant; no house or fence or anything in the way of improvements being on the premises. On cross-examination he stated that he had never seen the premises before or since said September or October, 1914. Under this statute the applicant must prove the condition of the lot as to occupancy at the time the application was filed. The application is not evidence of the fact. Jackson v. Glos, 243 Ill. 280, 90 N. E. 717;Brooke v. Glos, 243 Ill. 392, 90 N. E. 751,134 Am. St. Rep. 374. This requirement is not satisfied by proof of occupancy several months before or after the filing of the application. In Glos v. Miller, 213 Ill. 22, 72 N. E. 714, evidence that the lots were vacant and unoccupied about two years before the filing of the bill was held insufficient. In Johnson v. Huling, 127 Ill. 14, 18 N. E. 786, the bill was filed September 10, 1887, and the proof related to the occupancy May 8, 1888. The court there said that did not prove the premises ‘were vacant and unoccupied at the time of filing the bill. For aught that appears in the proof, the premises may have then been in the possession of the defendant.’ In Glos v. O'Toole, 173 Ill. 366, 50 N. E. 1063, the complainant testified at the hearing, eight months after the bill was filed, that he was in possession of the property, and the court held that this did not tend to prove the material and necessary allegation that he was in possession at the bringing of the action. In Glos v. Perkins, 188 Ill. 467, 58 N. E. 971, it was decided that the rule that the law will presume the continuance of a state of things once established by proof does not apply in cases of this sort; that proof that the premises were vacant and unoccupied three years prior to the filing of the bill did not establish a presumption that this state continued until the filing of the bill. There is no satisfactory proof in this record that the premises in question were vacant and unoccupied on the date the application was filed.

[2] Appellee, William Harty, offered in evidence before the examiner, as a part of the abstract of the premises, a continuationof abstract signed by Joseph F. Connery, recorder, purporting to state the matters of record concerning the title from January 30, 1914, to May 12, 1914. John G. Norris, called as a witness for the appellee, testified that he was an abstract maker in the employ of the county recorder, and that he compiled the information required for said continuation and gave the minutes to the stenographer to write up; that said continuation was signed in the ordinary course of business by the person who usually signed abstracts for Joseph F. Connery, recorder. This was all the evidence concerning this continuation, so far as it bore on the point here in question. It is argued by appellants that there is no evidence in the record to show that the recorder of Cook county was engaged or authorized to engage in the business of making abstracts of title for hire, as required by section 18 of the act here in question (Hurd's Rev. St. 1913, c. 30, § 61). That section reads in part as follows:

‘It shall be sufficient proof that any original abstract of title was made or issued in the ordinary course of business by makers of abstracts, to show that the signature attached to the abstract is the genuine signature of the person, firm or corporation purporting to make or issue the same, appended either in person or by the hand of any person or official accustomed to attach such signature in the ordinary course of business, and that such maker was known or generally reputed to have been in the business of making...