De Proft v. Heydecker , 13189.

• Decision Date: 08 June 1921
• Docket Number: No. 13189.,13189.
• Citation: 131 N.E. 114,297 Ill. 541
• Parties: DE PROFT v. HEYDECKER et al. DE PROFT et al. v. CAMERON et al.
• Court: Illinois Supreme Court

297 Ill. 541

131 N.E. 114

DE PROFT

v.HEYDECKER et al.

DE PROFT et al.

v.CAMERON et al.

No. 13189.

Supreme Court of Illinois.

April 21, 1921.

Rehearing Denied June 8, 1921.

Suit by Louis C. De Proft against E. J. Heydecker to quiet title and to compel a conveyance, and George W. Cameron and others filed cross-bill. Decree for complainant dismissing the cross-bill, and cross-complainants appeal.

Reversed and remanded, with directions.

Appeal from Circuit Court, Lake County; Claire C. Edwards, judge.

Cooke, Pope & Pope, of Waukegan, for appellants.

Cheney & Evans, of Chicago, Paul MacGuffin, of Libertyville, and Albert Peterson, of Chicago, for appellees.

DUNN, J.

Louis C. De Proft filed a bill in the circuit court of Lake county to quiet his title to a certain tract of land lying between Nippersink and Fox Lakes, the title of which was originally in William H. Cameron, and to compel the heirs of Cameron to convey the legal title to the complainant. Some of the heirs filed cross-bills for the partition of the lands, praying that certain instruments be set aside as clouds on their title. The bill was amended and a supplemental bill was filed, the cause was heard on the issues made by the pleadings and the evidence, a decree was rendered granting the relief prayed for by the complainant and dismissing the cross-bill. George W. Cameron and Simeon O. Cameron, two of the heirs of William H. Cameron, who were defendants to the original bill and complainants in the cross-bill have appealed.

It appears from the evidence that in 1899 Joel N. Hastings made a contract for the exchangeof the property in controversy, called the Lakeside Hotel property, for two lots which Hastings owned in Chicago; that Hastings immediately went into possession of the land and commenced to improve it; that he erected a windmill, a bungalow, and a cottage, built fences around it, except where it was bounded by the water, did some tiling and planted trees, all at a total cost of $3,500. These improvements were made in 1899 and 1900. In April, 1900, Cameron died without having conveyed the property to Hastings, neither had Hastings conveyed the Chicago lots to Cameron. Cameron left a widow and five sons, one of whom was a minor and did not become of age until 1904. William J. Cameron, one of the sons, was appointed administrator. On July 30, 1900, he entered into the following written agreement with Hastings:

‘Memorandum of agreement made this 30th day of July, 1900, between Joel N. Hastings, of Chicago, Illinois, party of the first part, and Wm. J. Cameron, administrator of the estate of Wm. H. Cameron, deceased, of Chicago, Illinois, party of the second part, witnesseth that Joel N. Hastings agrees to pay a certain second mortgage recorded in Lake county, Illinois, as document No. 70,334, given by Arno B. Winns and wife to H. P. Tilden to secure a note of $1,000, said note and interest at this date amounting to $1,023.83. Said Joel N. Hastings also agrees to renew for five years from November 11, 1900, a certain first mortgage for $4,000 recorded in Lake county, Illinois, as document No. 63,552, given by Horace P. Tilden et al. to J. H. Garrison to secure the notes therein described, amounting to the principal sum of $4,000, said renewal to be made by indorsement on the present notes. In consideration of this payment of note for $1,000 and renewal of loan of $4,000 the party of the second part agrees to obtain, within ninety days from date, a good and valid conveyance of that portion of the property known as Lakeside Hotel property lying north and west of the county road and extending to the water's edge.

‘In witness whereof the parties hereunto have hereto set their hands and seals the day and year first above written.

‘Joel N. Hastings.

‘Wm. J. Cameron, Adm'r.

‘Witness: Edward F. Brant.’

Hastings paid the $1,000 note, had the $4,000 mortgage extended, and conveyed the two lots to William J. Cameron which he had agreed to convey to William H. Cameron. William J. Cameron never obtained any conveyance of the property, and no conveyance of the title was ever made to Hastings who continued in the occupation of the property until August 1, 1908, when he sold and conveyed it to the complainant and William Herbertz, who at once took possessionof it and continued in the possession until December 2, 1912, when Herbertz conveyed his interest to the complainant, who has since been in possession. On March 12, 1909, the complainant and Herbertz paid the taxes for the year 1908. They also paid the taxes for 1909, 1910, and 1911. The taxes for 1912, 1913, and 1914 were paid by the complainant. On October 4, 1915, the complainant began this suit. On February 3, 1916, the appellants filed their answer, denying the complainant's title and relying upon their title derived from their father. On the same day George W. Cameron filed a cross-bill, and on March 10 Simeon O. Cameron and Alfred L. Cameron also filed a cross-bill, each praying for partition of the premises. On December 16, 1909, the county of Lake executed a deed to Colon H. Ostrander for a tract of land including a part of the land in controversy in this suit. The deed was executed in accordance with a petition of Ostrander stating that he had acquired the title to certain lands, to a portion of which he was informed the county claimed title, and praying for a deed in consideration of $1.25 an acre. The petition was referred to the swamp land committee, which reported recommending that it be granted, and the deed was executed by the county clerk in accordance with the direction of the board of supervisors.

The appellees claim to have established title in themselves by reason of the contract for the exchange of lands between William H. Cameron and Hastings and its performance; by reason of the contract between William J. Cameron and Hastings and its performance; by the seven-year statute of limitations; by estoppel; by laches; and by the deed from lake county so far as it included any of the land in controversy.

In regard to the last claim, the court made no finding that any title was conveyed by the county's deed or that any part of the land was, in fact, swamp and overflowed land. There was no evidence that the Secretary of the Interiorhad determined that the land was swamp and overflowed land. Had he done so that determination would have been conclusive. State v. New, 280 Ill. 393, 117 N. E. 597. In the absence of such determination it was necessary for the appellees to show that the land was, in fact, swamp and overflowed land. The act of Congress of September 28, 1950, (U. S. Comp. St. § 4958), granting to the states the ‘swamp and overflowed lands made unfit thereby for cultivation’ was a present grant of all the public lands of the quality mentioned to the states within which they lie. This description requiring something more than a mere reference to section, township, and range to identify the particular tracts, it was made the duty of the Secretary of the Interior to furnish the evidence for that purpose. The title of the state does not, however, depend upon the act of the Secretary but upon the act of Congress, and if the Secretary has failed to furnish the state with the evidence, the fact may be proved by any witnesses whose personal knowledge would enable them to testify as to the character and condition of the land. Wabash, St. Louis & Pacific Railway Co. v. McDougal, 113 Ill. 603;Hannibal & St. Joseph Railroad Co. v. Smith, 9 Wall. 95, 19 L. Ed. 599;Irwin v. San Francisco Savings Union, 136 U. S. 578, 10 SUP. Ct. 1064, 34 L. Ed. 540. The appellees, who claim that the title to the land passed under the terms of the grant, have the burden of showing that the land was of the description mentioned in the grant-that is, swamp and overflowed land. Buena Vista County v. Iowa Falls & Sioux City Railroad Co., 112 U. S. 165, 5 Sup. Ct. 84, 28 L. Ed. 680. The act of Congress provided that, in making out lists and plats of swamp...