Judson v. Freutel

• Decision Date: 16 December 1914
• Docket Number: No. 9583.,9583.
• Parties: JUDSON v. FREUTEL et al.
• Court: Illinois Supreme Court

266 Ill. 24

107 N.E. 207

JUDSON

v.FREUTEL et al.

No. 9583.

Supreme Court of Illinois.

Dec. 16, 1914.

Appeal from Superior Court, Cook County; Denis E. Sullivan, Judge.

Action by Nathan Judson against Edward Freutel, Jacob Glos, and others. Decree for complainant, and defendants Jacob Glos and others appeal. Reversed and remanded.

John R. O'Connor, of Chicago, for appellants.

David G. Robertson, of Chicago, for appellee.

CRAIG, J.

Appellee, Nathan Judson (complainant in the court below), filed his bill in chancery in the superior court of Cook county claiming to be the owner in fee simple and in possession of lots 25 and 26, in block 1, in Davis' subdivision, in the city of Chicago, and seeking to quiet title to said lots 25 and 26 and the other real estate described in the bill of complaint. The complainant alleged in the bill that his title was acquired by a chain of conveyances set out in the bill, and alleged his ownership in the property in question by virtue of said conveyances constituting claim and color of title made in good faith and payment of all taxes on said premises for more than seven successive years, said premises being vacant and unoccupied during that time, and that since the last payment of taxes, and before filing the bill of complaint, complainant had taken possession of said premises, and was, at the time of filing the said bill, in the absolute, open, and notorious possession thereof. The bill further alleged that Jacob Glos, Emma J. Glos, his wife, and August A. Timke, individually and as trustee, claimed to have some right, title, or interest in said premises, but that at the time appellee took possession of the same his limitation title was perfected, and all claims of title or interest of said defendants were null and void, and were clouds upon the title of complainant, and prayed that the same be decreed to be void and canceled and removed of record as clouds upon the title of complainant. The defendants Jacob Glos, Emma J. Glos, and August A. Timke, trustee, filed their answers to the bill, and the complainant replied thereto. The other defendants were defaulted, and the cause was referred to a master in chancery to take the evidence and report the same, with his conclusions. Thereafter the evidence was heard by said master, and he reported finding that the complainant, Nathan Judson, was the owner in fee simple absolute of the premises, that he was entitled to the relief prayed in the bill, and recommending that a decree be entered in accordance with the prayer of the bill upon payment being made to the defendant Jacob Glos of $78.64, being the amount paid out by him as taxes and legal costs as the holder of certain tax deeds on the said lots 25 and 26 and his costs in the suit. Objections were filed to the master's report, which were overruled by the master, and which were allowed to stand as exceptions before the court, and on a hearing by the court the same were overruled, and a decree was entered in accordance with the prayer of the bill and the recommendations of the master, from which the defendants appealed.

Numerous errors have been assigned, but the only ones argued and relied upon are: (1) That it is not alleged in the bill or shown by the proofs that there was any defect or invalidity in the tax deeds obtained by the defendants, and that the case was a mere contest of the legal titles, of which equity has no jurisdiction; (2) that there was no competent evidence of the ownership of lots 25 and 26 claimed by the complainant; and (3) that the amount decreed to be paid the defendants as reimbursement for taxes, legal costs, and penalties in procuring said tax deeds is insufficient.

As to the first assignment of error, the complainant alleged that he was the owner of said premises in fee under claim and color of title obtained in good faith and payment of taxes for seven successive years under section 7 of the Limitation Act. He attempted to show this by evidence, and, had the evidence introduced by him been proper and sufficient, it would have sustained that claim. Under these circumstances it was not necessary to allege or prove that the tax deeds of the defendants were invalid. The tax deeds might have been valid, and yet, if the complainant had in good faith, as he alleged, obtained a deed to said premises which would be color of title, and, under said deed, had paid all taxes and assessments levied against said property for seven successive years, said property being vacant and unoccupied, then, under section 7 of the Limitation Act (Hurd's Stat. 1913, p. 1575), said title would have been good according to the extent and purport of such paper title, and could be asserted by him in a suit to quiet title under section 50 of the Chancery Act. Walker v. Converse, 148 Ill. 622, 36 N. E. 202;Harms v. Kransz, 167 Ill. 421, 47 N. E. 746;Simons v. Drake, 179 Ill. 62, 53 N. E. 574;Kuhn v. Glos, 257 Ill. 289, 100 N. E. 1003.

It appears from the evidence that the complainant based his title to lots 25 and 26 on a deed from Ellen Gallotti to W. S. Alexander, a deed from Alexander and wife to James B. Judson, and a deed from James B. Judson and wife to complainant (the latter deed dated in 1902), and payment of all taxes and assessments, as shown by the tax receipts from 1902 to 1913. The defendant Jacob Glos held tax deeds on said lots issued in 1895, 1896, and 1897.

As to the second assignment of error, on the hearing before the master the complainant offered, and the master admitted in evidence, a sworn copy of the record of a deed from Ellen Gallotti to W. S. Alexander, dated January 19, 1883, and also a sworn copy of the record of a deed from James B. Judson and Julia B. Judson, his wife, to the complainant, dated November 5, 1902. This last deed was the only conveyance offered by complainant to show title in himself, and it was the claim and color of title upon which he based his ownership in said premises, in connection with seven years' payment of taxes. Objection was specifically made to this deed, on the ground, among others, that no foundation had been laid for the introduction of secondary evidence of the contents of any deed such as was described, and that the same was not competent secondary evidence. To lay the foundation for offering these copies the complainant made his affidavit that the original deed from Ellen Gallotti to W. S. Alexander, dated January 19, 1883, and duly filed for record in the recorder's office of Cook county on March 23, 1883, and recorded in Book 1330 of Records, at page 264, as document No. 455,480 of the records of said office, and the original deed from James B. Judson and Julia B. Judson, his wife, of Lansing, Mich., to Nathan Judson, dated the 5th day of November, 1902, and filed for record in the recorder's office on December 12, 1902, and duly recorded in Book 7975 of Records, at page 622, as document No. 3,331,215 of the records of said office, and each and all of them, have been lost or destroyed, and it is not within the power of affiant to produce the same; that said instruments, and each of them, have not been intentionally lost or destroyed or otherwise disposed of for the purpose of being permitted...