Norris v. ILE

• Decision Date: 05 May 1894
• Citation: 152 Ill. 190,38 N.E. 762
• Parties: NORRIS v. ILE.
• Court: Illinois Supreme Court

152 Ill. 190

38 N.E. 762

NORRIS

v.ILE.¹

Supreme Court of Illinois.

May 5, 1894.²

Appeal from circuit court, Wayne county; E. D. Youngblood, Judge.

Ejectment by George W. Norris against Charles Ile. Defendant obtained judgment. Plaintiff appeals. Affirmed.

H. Tompkins, Geo. M. Norris, C. S. Conger, and R. D. Adams, for appellant.

E. Beecher, R. P. Hanna, and Creighton & Kramer, for appellee.

MAGRUDER, J.

This is an action of ejectment, brought by appellant against appellee, for the recovery of the N. W. 1/4, section 24, township 1 S., range 9 E. of the third P. M. in Wayne county. The case was tried, by agreement, before the court without a jury. The finding and judgment were for the defendant, and the present appeal is prosecuted from such judgment.

The land involved was originally a part of the swamp lands granted to the state by act of congress, approved September 28, 1850 (2 Starr & C. Ann. St. p. 2379), and granted by the state to the several counties in which they were located by act of the legislature approved June 22, 1852 (1 Adams & D. Real Estate Stat. & Dec. Ill. p. 898). It is conceded that the county of Wayne had good title to the swamp lands therein under said acts, and both parties deraign their title from said county. Appellee claims title through a foreclosure sale in a proceeding to foreclose a mortgage executed by said county, and conveying certain swamp lands, including the quarter section above mentioned. Appellant claims title through a deed of the same swamp lands, executed by said county after the execution of said mortgage, and after the filing of the bill to foreclose the same. On April 20, 1859, the county of Wayne executed to Isaac Seymour, trustee, of New York, a mortgage upon 103,818 acres of its swamp lands (less 3,800 acres pre-empted), to secure the payment of construction bonds of the Mt. Vernon Railroad Company to the amount of $800,000, and at the same time also executed to said Seymour, as trustee, a trust deed conveying said lands to him upon certain trusts relating to the construction of said road and the raising of funds therefor, and containing recitals similar to those in the mortgage, and equally in the interests of the holders of said bonds. Said mortgage and trust deed were recorded in the recorder's office of Wayne county on May 3, 1859. On the same day the Mt. Vernon Railroad Company executed a mortgage upon its contemplated railroad, its appurtenances, franchises, and all its property and effects, present and prospective, to the said Seymour, as trustee, for the purpose of securing said bonds and for the benefit of the holders thereof. A fuller description of these instruments, and of the proceedings leading up to their execution, will be found in Kenicott v. Supervisors, 16 Wall. 452, and Scates v. King, 110 Ill. 456. On March 7, 1865, John W. Kenicott and others, holders of some of said bonds, filed a bill in the circuit court of the United States for the Southern district of Illinois against the Mt. Vernon Railroad Company and the county of Wayne to foreclose said mortgages and trust deed, alleging, among other things, the death of Seymour, the trustee, and that by reason thereof the trust had become incapable of execution except by the aid of the courts, and praying for an accounting and for such other relief as might be just and equitable. On March 29, 1866, the complainants in said foreclosure suit filed an amended bill, setting up more specifically the facts in relation to the organization of the company, and praying that a trustee be appointed in the place of Seymour to execute the trust under the direction of the court, or for a decree foreclosing said mortgages or deed of trust. On October 1, 1866, complainants filed a second amended bill setting forth said mortgages, and provisions of the charter of said railroad company, and the action of the county court in calling and holding an election to take the vote of the people upon the question of aiding in the construction of a railroad by the appropriation of the swamp lands to that purpose, and in ordering the execution of said mortgages, and praying for a foreclosure of said mortgages and trust deed. Summons, issued upon the original bill, was served upon the county on March 11, 1865. The railroad company was also served, and default was entered against it on June 1, 1868, and a decree of sale entered against it on June 18, 1868, under which the company's road, franchises, and effects were sold by the master to the company, and subsequently conveyed to it by a master's deed. Scates v. King, supra. On January 17, 1870, to which date the cause had been continued on the docket as to the county of Wayne, the said complainants filed a third amended bill, containing the same allegations and prayer as the former bill, and setting up, in addition to such allegations, that on November 19, 1858, the county of Wayne had made a written contract with Vanduzer, Smith & Co. for the construction of a railroad from Mt. Vernon, in Jefferson county, to the eastern boundary of Wayne county, thus running across the entire width of the latter county; and that Vanduzer, Smith & Co. thereafter assigned their interest in said contract to the Mt. Vernon Railroad Company. The contract thus assigned is more fully described in Kenicott v. Supervisors, supra, and Scates v. King, supra. This bill was answered by the county upon its merits. A hearing was had on January 2, 1871, and a decree dismissing the bill was entered by said circuit court of the United States. This decree, upon appeal to the supreme court of the United States, was reversed, and the cause was remanded to the circuit court, as will be seen by reference to Kenicott v. Supervisors, supra. On June 25, 1874, a decree was entered by said circuit court, foreclosing the mortgage and trust deed executed by the county of Wayne, and directing a sale of said lands by the master, and ordering that said county, and all persons claiming under it as purchasers or grantees pendente lite ‘since the commencement of this suit,’ be forever barred and foreclosed from all equity of redemption in said mortgaged premises, unless redeemed according to the laws of Illinois; and that the purchaser at the master's sale be let into possession, and that said county or railroad company, or purchaser pendente lite under either of them, who might be in possession, and any person coming into possession since the commencement of the suit, should surrender possession on the production of the master's deed. The decree of foreclosure and sale thus entered by the circuit court was taken by appeal to the supreme court of the United States, and was there affirmed, as will be seen by reference to the case of Supervisors v. Kenicott, 94 U. S. 498. Thereafter, on September 18, 1877, a sale was made by the master in chancery of the circuit court, under said decree, to the trustees of the complainants, and a certificate of purchase was issued to them, and by them assigned to N. M. Broadwell, to whom a master's deed of said lands was executed on May 5, 1879. By a regular chain of conveyances, the title thus acquired by Broadwell has passed to and become vested in the appellee herein, Charles Ile.

On October 13, 1868, the county clerk of Wayne county, in pursuance of an order entered on October 5, 1868, executed quitclaim deeds to the Illinois Southeastern Railway Company, conveying all the lands involved in the Kenicott suit, and other lands, which deeds, by the terms of a contract between said county and said railway company, were held in escrow by one Alexander, as trustee, until the fulfillment of certain conditions, and were not delivered until July 1, 1870 (said conditions having been performed on April 14 and May 1, 1870), and were not recorded until June 15, 1872. The Illinois Southeastern Railway Company was in December, 1869, consolidated with the Pana, Springfield & Northwestern Company, the name of the consolidated company being the Springfield & Illinois Southeastern Railway Company. By deed dated July 29, 1871, and recorded June 15, 1872, the Illinois Southeastern Railway Company conveyed the lands in question to the Springfield & Illinois Southeastern Railway Company; and the latter company, by deed dated July 10, 1871, and recorded May 31, 1872, conveyed said lands to C. A. Beecher. By regular conveyances, whatever title was thus acquired by C. A. Beecher has passed to, and become vested in, the appellant herein, George W. Norris.

As the Illinois Southeastern Railway Company did not obtain its deed from Wayne county until 1868, it was, of course, bound to take notice of the mortgage made by the county to Seymour as trustee, which had been executed and recorded as early as 185. The deed of 1868 was subject to the mortgage of 1859, and the holders of the bonds secured by the mortgage were entitled to priority, in the enforcement of their security, over the subsequent purchaser of the equity of redemption. It is shown by the proof, and is not denied by appellant, that the grantee in the deed of 1868 had actual, as well as constructive, notice of the mortgage of 1859. But it is claimed that such notice cannot have the effect of postpoing the rights of those claiming under the deed to the rights of those claiming under the mortgage, because of the alleged void character of the mortgage. It is urged that the county court had no power to execute the mortgage; that consequently nothing passed by it; and that the grantee in the deed of 1868, having notice of such want of power, was authorized to disregard the mortgage, and accept a conveyance of the land as though no such mortgage existed. In support of this position, reference is made to the case of Scates v. King, 110 Ill. 456. It was held in that case that the trust deed and mortgage made by the county of Wayne in 1859 were void for want of power to execute them. There, the deeds to King were executed by the county before the bill...