Sheaff v. Spindler

• Decision Date: 10 June 1930
• Docket Number: No. 19651.,19651.
• Citation: 339 Ill. 540,171 N.E. 632
• Parties: SHEAFF v. SPINDLER et al.
• Court: Illinois Supreme Court

339 Ill. 540

171 N.E. 632

SHEAFF

v.SPINDLER et al.

No. 19651.

Supreme Court of Illinois.

April 17, 1930.

As Modified on Denial of Rehearing June 10, 1930.

Suit by John M. Sheaff against Lucille Duplissis Spindler and others. From a decree of dismissal, complainant appeals.

Reversed and remanded, with directions.Appeal from Superior Court, Cook County; Joseph H. Fitch, judge.

Herrick, Vette & Peregrine, of Chicago, for appellant.

McGilvray, Eames, Vaughan & Tilley, of Chicago, for appellee.

J. Scott Matthews, of Chicago, for Clayton F. Smith, Registrar of Titles.

DUNN, J.

This appeal is from a decree of the superior court of Cook county dismissing, for want of equity, an amended bill of John M. Sheaff to remove as a cloud on his title to the northeast quarter of the northwest quarter of the northwest quarter of section 6, town 36 north, range 15 east of the third principal meridian, in Cook county, a decree of the circuit court for registration under the Torrens Law of title to the real estate in Joseph L. Duplissis, and the registration and certificates of title based on that decree. The original bill was filed on June 10, 1920. It was afterward amended, and as finally amended alleged title under a grant from the United States to the Illinois Central Railroad Company, which conveyed the land on March 10, 1870, to Ira Brown, who conveyed it to James W. Converse on October 21, 1886. Converse conveyed to the Illinois Land & Loan Company, a corporation, by deed dated July 29, 1902. The Illinois Land & Loan Company conveyed to Robert T. Pearce on March 13, 1912, and Pearce on October 5, 1918, conveyed to Frank C. Caldwell, who conveyed to the complainant on October 1, 1919. The amended bill further alleged possession of the premises in the complainant's grantors and himself under the title alleged since September 15, 1891, as follows: That on the 15th day of September, 1891, Converse, under the claim and color of title existing in him, entered into the actual possession of said premises and constructed a continuous post and wire fence around the premises above described and herein involved; that immediately thereafter he leased all of said premises under written lease to a tenant, who immediately, and before May 1, 1892, entered thereupon and continued to farm and cultivate the premises under his lease and under the claim of title so existing in Converse, and has continued so to use the premises under Converse and his grantees in title above named, continuously since and down to the present day; that Converse, down to the time that he transferred his interest to the Illinois Land & Loan Company, and said company and its grantees in title, Robert T. Pearce, Frank C. Caldwell, and your orator, have respectively and successively, under the claim and color of title existing in each of them, been and continued in the actual, adverse, open, hostile, notorious and exclusive and constant, continued and uninterrupted possession of all of said tract of land or premises and that the premises have been so continually possessed; that the possession of your orator ever since the actual entry in September, 1891, down to the present day, and his grantors in title, consisted of fencing the premises and leasing the same to tenants, who lived on the premises, farming the same and keeping trespassers from entering the same, and paying rent to your orator and his grantors in title for the same.

The cloud which the bill sought to remove originated with an application filed in the circuit court on March 9, 1911, by Joseph L. Duplissis to register the title in him. The allegations of the amended bill show that the application for registration alleged that the premises were vacant and unoccupied, while the fact was that the Illinois Land & Loan Company was in open, notorious, and exclusive possession at that time. The complainant in the present suit, and his predecessors in title, as alleged in the amended bill, had had actual and physical possession of the premises for more than twenty-eight years, and such possession had been open, continuous, exclusive, and adverse to all the world and without interference from any one during all of that period. Neither the Illinois Land & Loan Company nor any of its grantors or grantees was made a party to the proceedings for registration of title or had any legal or actual notice thereof, and the proceedings constituted a fraud against the Illinois Land & Loan Company and were without due process of law. Duplissis fraudulently and untruthfully made his affidavit filed in the registration proceedings, stating that the premises were vacant and unoccupied and that no one other than he had any interest in the premises, and at the time of filing the affidavit he knew that the Illinois Land & Loan Company was in actual, open, notorious, and exclusive possession of the premises under its claim of title, and the sole purpose of filing the affidavit was to induce the court to grant a decree without making the Illinois Land & Loan Company a party, and to divest it of its property without due process of law. The bill further showed that the county officer having charge of the examination of titles sought to be registered, or some one acting under his authority, fraudulently failed to make the complainant's grantors in title, or any of them, party or parties to such registration proceedings; that if any evidence was submitted to the examiner, master or other officer of the court before whom the proceedings were purported to have ben had, pertaining to the title and possession of the premises, such evidence, in so far as it attemptedto defeat the title to the premises in the Illinois Land & Loan Company, was untrue and false.

A decree was entered on April 21, 1911, directing the registration of title to the premises in Duplissis, but, the amended bill alleged, it was without jurisdiction of and was void as against the Illinois Land & Loan Company and its successors in title. The registrar of titles, relying upon that decree, issued to Duplissis four certificates of title, which together covered the premises and which remain uncanceled. Neither the complainant nor his grantors in title had any legal or actual notice of the filing of the registration proceeding until shortly before the filing of the bill in this case.

Minnie Krug, individually and as trustee in two trust deeds executed to her by Duplissis on March 22, 1916, and registered on March 30, 1916, as documents 58,361 and 58,363, each to secure a note for $1,250 payable to her, Henry Krug, as successor in trust, and the unknown owners of each of the notes, together with the unknown owners of the land, and the registrar of titles, were made defendants to the bill.

The defendants decline to bring an action at law to test their claims to title. The facts showing the possession of the complainant and his predecessors in title rest largely in parol, and the evidence to show such facts is apt to be lost in the course of time. The complainant is unable to sell his property and give a merchantable title without the aid of a court of equity in canceling and removing the adverse claims.

The prayer of the bill, so far as material, was: (d) that your orator may be found and decreed to be the owner in fee simple absolute of the said premises or real estate; (e) that the defendants, and each of them, and all parties claiming under them, may be formally held and decreed to be estopped to question the said title and ownership or to question the facts in reference to such possession, claim and title; (f) that said defendants, and all persons claiming by, through or under them, may be restrained and enjoined from interfering with the said possession of your orator or any and all persons claiming under him; (g) that your orator may be secured and continued in his possession of said real estate by decree of this court; (h) that all of the proceedings had under said cause No. LR4114 in the circuit court of Cook county, Illinois, be declared null and void and that the same be vacated and set aside; (i) that the said certificates issued by the said registrar of titles be declared null and void and that they be canceled and surrendered and the said Joseph L. Duplissis, and all persons holding or claiming by, through or under him, be enjoined from claiming any interest of any kind in the said premises or executing any conveyances or deeds of any part of said premises.'

Duplissis demurred to the bill as finally amended. The Krugs demurred to the original bill but did not take any other action in the case. The demurrer of Duplissis was sustained on November 28, 1921, and the amended bill was ordered dismissed as to him. This order was modified on December 3, 1921, by adding the following: ‘Appeal prayed and allowed to the Supreme Court of the State of Illinois, which appeal is to be perfected at the time of the final disposition of this cause.’ The registrar of titles answered on June 12, 1922, denying all the allegations of the bill except that Duplissis filed application for registration of title and that a decree was entered therein and certificate of title issued to Duplissis.

The cause stood thus until February 4, 1928, when additional counsel were given leave to enter their appearance as associate counsel for Duplissis. On February 7, 1928, counsel for the complainant was given leave to withdraw his appearance and the counsel now appearing for the complainant were given leave to enter their appearance as counsel for him. Duplissis died about March 2, 1928, leaving a will, which was admitted to probate. Letters testamentary issued to his daughter, Lucille Duplissis Spindler, and the Woodlawn Trust & Savings Bank, and upon the suggestion of the complainant, they, together with the other persons interested in the distribution of the estate, were substituted as defendants in the place of Duplissis. They were served with summons or by publication of notice, and ...