Thomas v. Durchslag

• Decision Date: 18 January 1950
• Docket Number: No. 31151,31151
• Citation: 404 Ill. 581,90 N.E.2d 200
• Parties: THOMAS v. DURCHSLAG.
• Court: Illinois Supreme Court

Page 200

90 N.E.2d 200

404 Ill. 581

THOMAS v. DURCHSLAG.

No. 31151.

Supreme Court of Illinois.

Jan. 18, 1950.

Braden, Hall, Barnes & Moss, of Chicago (Zedrick T. Braden, Chicago, of counsel), for appellant.

Weightstill Woods, of Chicago, for appellee.

CRAMPTION, Justice.

The superior court of Cook County decreed the title to an Evanston lot to be in plaintiff Thomas in an action to remove a cloud upon his title thereto. Durchslag, the defendant, took an appeal to the Appellate Court, First District; that court, on his motion, transferred the appeal to this court on the ground a freehold is involved.

From the pleadings we find Thomas claims to have been the owner of the record title and in possession ever since 1925. Durchslag bases his claim of ownership as the holder through mesne conveyances, on a tax deed of 1928 and on adverse possession under a claim of right for over twenty years before he was ejected. He filed a counterclaim for damages, alleging he was unlawfully ejected from the lot by Thomas. Barbour is a defendant because he is the justice of the peace before whom Durchslag instituted suit against the lot tenant for rent claimed. A restraining order to halt the suit was asked. A separate count at law in the amended complaint was transferred to the law side of the court and has no bearing in a determinative sense upon the issues presented to the chancery side of the court.

The evidence was heard by the chancellor. On the basis that the amended answer of Durchslag admitted the title stated in the amended complaint and was countered by the affirmative defense of a claim of right under the tax deed, Thomas contended Durchslag should be the first one to present evidence. This was not objected to by Durchslag, and he proceeded to introduce his evidence; Thomas elected to introduce no evidence. The chancellor held there were admissions in Durchslag's pleadings that Thomas had made a prima facie case without the necessity of introducing evidence. Durchslag's evidence was held not to substantiate his claim. The decree found all issues had been proved and established for Thomas and against all parties defendant. The cloud declared to exist on his title was removed, and he was declared to have been vested with the exclusive fee title to the lot ever since August, 1925. The decree was a final disposition of the conflicting claims of Thomas and Durchslag to the lot.

Durchslag is accused, in this court, of presenting no litigable issue on appeal. This is based upon the proposition that the record as analyzed by Thomas proves it. Our analysis of the record does not agree with that of Thomas. Durchslag is charged to have waived all the issues over which this court would have jurisdiction on direct appeal (i.e., a freehold) by taking his appeal in the first instance to the Appellate Court. That is not so, there being a material difference between the action of the Appellate Court transferring an appealed case to this court for a jurisdictional reason, and where it has determined an appeal on assigned errors it has jurisdiction to consider, and further appellate review is sought in this court, on the ground one, or some, of the assigned errors not considered by the Appellate Court could only have been disposed of by this court in the first instance. This difference is recognized in section 86 of the Civil Practice Act, Ill.Rev.Stat.1949, c. 110, § 210, wherein the transfer of appeals is provided for when the appellate has selected the wrong appellate forum. The fact Durchslag paid the costs assessed against him in the trial court, cannot constitute a waiver of all possible errors. The payment of costs is the discharge of a debt due, and cannot be looked upon as the acceptance of a decreed benefit which operates to waive the right to attack the unfavorable parts of the decree. Thus a litigable issue is presented by this appeal.

Thomas informs us that if a litigable issue is present on appeal, it is one this court cannot consider had there been a direct appeal, for the record is bare of any contention to support a freehold claim. The cases cited by him do not, on inspection, support the point. Had the chancellor decreed in favor of Durchslag, the freehold would have been lost to Thomas. The defendant's third assigned error, charging that his evidence made out a prima facie case and the court should have decreed in his favor, clearly presented the question of the correctness of the findings of fact in the decree and the judgment based thereon. In general, suits to remove a cloud on title by cancellation of a deed involves the freehold the statute demands for a direct appeal to this court. Kesner v. Miesch, 204 Ill. 320, 68 N.E. 405; Seibert v. Seibert, 379 Ill. 470, 41 N.E.2d 544, 141 A.L.R. 299. A complaint to remove a tax deed as a cloud on title to land involves a freehold. Glos v. Stern, 213 Ill. 325, 72 N.E. 1057; Glos v. Shedd, 218 Ill. 209, 75 N.E. 887. Whether, in a given instance, a freehold is involved for the purpose of direct appeal may depend upon the pleadings and the assignments of error. Kesner v. Miesch, 204 Ill. 320, 68 N.E. 405; Gits v. Ullrich, 288 Ill. 527, 123 N.E. 528. The freehold in the lot is involved on the basis of the pleadings and error assigned, and this court has jurisdiction of the appeal. Having so determined the presence of an involved freehold, the last reason advanced by Thomas for dismissing the appeal, namely: that Durchslag was derelict in only indexing and not abstracting his notice of appeal in the abstract, and, it not being otherwise shown, it must be taken he has not asked this court to take any action whatever, is a contention likewise without merit. The decree is set out in full in the abstract, and the assignments of error evidence that Durchslag asks this court to reverse the decree.

Durchslag cannot urge the alleged error of the chancellor in requiring him to present his evidence first. The point was not saved by appropriate objection made at the time, and the matter is waived.

Durchslag contended the amended complaint shows upon its face that it does not state a cause of action, for it does not contain an offer by Thomas to reimburse him for what he had in the property as is required by certain provisions of section 270 of the Revenue Act of 1939. (Ill.Rev.Stat.1947, chap. 120, par. 751.) Section 270 of the act treats of tax deeds as evidence, and of the payments to be made by the owner of the real estate upon the restoration or confirmation of an unclouded title to him. The tax deed, when executed, shall be prima facie...