Horner v. Jamieson

• Court: Illinois Supreme Court
• Writing for the Court: MURPHY
• Citation: Horner v. Jamieson, 394 Ill. 222, 68 N.E.2d 287 (Ill. 1946)
• Decision Date: 12 September 1946
• Docket Number: No. 29323.,29323.
• Parties: HORNER v. JAMIESON et al.

394 Ill. 222

68 N.E.2d 287

HORNER

v.JAMIESON et al.

No. 29323.

Supreme Court of Illinois.

May 21, 1946.

Rehearing Denied Sept. 12, 1946.

Appeal from Circuit Court, Winnebago County; William L. pierce, judge.

Ejectment action by E. F. Horner against Eva Olive Jamieson and others. The defendants filed a counterclaim. From the decree, the plaintiff appeals.

Affirmed.

John R. Snively, of Rockford, for appellant.

Morris J. Hinchcliff and Hall & Hall, all of Rockford, for appellants.

MURPHY, Justice.

This is a direct appeal from a decree entered in the circuit court of Winnebago county. A freehold interest is involved. The complaint contained two counts in ejectment. Defendants filed an answer of general denial and a counterclaim interposing an equitable defense to the ejectment action. Issues were joined on the counterclaim and a hearing had, after which the decree appealed from was entered.The controversy involved a small triangular piece of ground, the description and location of which is left in doubt by the record. The chancellor found that if plaintiff had legal title to the triangular tract claimed, he was, by reason of the proof introduced under the the counterclaim, estopped from asserting title against defendants. It was ordered that plaintiff be perpetually enjoined from claiming possession of the disputed tract, and that defendants be declared to have a perpetual right of ingress and egress over it.

Plaintiff has assigned many errors relied upon for reversal but only some have been argued. It will be considered that those not argued have been waived.

Plaintiff contends that there is no provision in law for the filing of an equitable counterclaim in an action of ejectment. Prior to 1935, section 19 of the Ejectment Act (Cahill's Stat. 1933, chap. 45, par. 19), provided that the defendant to an ejectment action could demur to the declaration as in personal actions or plead the general issue, under which defendant might introduce in evidence any matter that would tend to defeat the plaintiff's action except as otherwise provided by the Ejectment Act. Under this provision it was held that estoppel in paid was not available as a defense to an action of ejectment. Metzger v. Horn, 312 Ill. 173, 143 N.E. 408;Wakefield v. VanTassell, 202 Ill. 41, 66 N.E. 830,65 L.R.A. 511, 95 Am.St.Rep. 207;Wright v. Stice, 173 Ill. 571, 51 N.E. 71;Winslow v. Cooper, 104 Ill. 235. Section 10 of the Ejectment Act as amended in 1935 (Ill.Rev.Stat. 1945, chap. 45, sec. 10) provides that rules of pleading and practice in other civil cases shall apply to actions of ejectment so far as they are applicable and except as is otherwise provided by this act. Section 19 of the act was amended permitting a defendant to file a motion as in ordinary civil cases and to answer by way of general or specific denial or by affirmative defense. These provisions permit a defendant to plead equitable defenses to an ejectment action to the same extent that he might plead such defenses to other civil actions under the Civil Practice Act. Firke v. McClure, 389 Ill. 543, 60 N.E.2d 220.

It is further contended that the defense interposed by the counterclaim was not germane to the action of ejectment. It will be observed that section 14 of the Ejectment Act provides that nothing shall be introduced by joinder, counterclaim or otherwise that is not germane to the distinctive purpose of the action. The facts upon which the equitable defense was founded are that on and prior to December 21, 1927, plaintiff owned a tract of land containing about eight and one half acres. It was enclosed by fences on all sides but one, which was along the public highway. It had a dwelling house thereon, in which plaintiff resided, and other buildings including greenhouses. Shortly before said date, plaintiff applied to a bank at Beloit, Wisconsin, for a loan of $1500. The evidence offered by the counterclaimants is that an officer of the bank made a personal inspection of the premises and while on the premises he had a conversation with plintiff. The bank officer testified that plaintiff told him he owned all the land that was inside the fences and that land wanted to borrow the money to complete the construction of a greenhouse which had just been started. Plaintiff furnished the bank with an abstract of title which described the land to include all that was inside the fences, and was the same description by which plaintiff had acquired his title several years before. The mortgage was executed with a description which followed that covered by the abstract of title. It is conceded that a part of the money obtained on the loan was used in completing the greenhouse, and that the triangular piece claimed by plaintiff is covered in part at least by the greenhouse. The covenants of the mortgage were that the mortgagor was seized of the presmises ‘together with all and singular the appurtenances thereunto belonging or in any wise appertaining * * * and that he will warrant and forever defend the same.’

The mortgage was foreclosed, a sale had from which there was no redemption. A deed, containing the description included in the mortgage, was executed by the master and delivered to the purchaser. He conveyed by the same description to the defendants.

Plaintiff was a party to the foreclosure action and it does not appear that he made any claim in reference to the ownership of any of the ground near the greenhouse or upon which it stood. He testified in this case that when he gave the mortgage to the bank in 1927, he considered that he owned all the land inside the fences and that he did not know of the defect in title until 1929. The decree of foreclosure was entered in April 1936, and in September following plaintiff obtained a quitclaim deed from Edith...