Vill. of Brooklyn v. Orthwein

• Decision Date: 04 November 1891
• Citation: 31 N.E. 111,140 Ill. 620
• Parties: VILLAGE OF BROOKLYN v. ORTHWEIN.
• Court: Illinois Supreme Court

140 Ill. 620

31 N.E. 111

VILLAGE OF BROOKLYN

v.ORTHWEIN.¹

Supreme Court of Illinois.

Nov. 4, 1891.

Appeal from circuit court, St. Clair county; B. R. BURROUGHS, Judge.

Bill to quiet title, brought by Charles W. Thomas against the village of Brooklyn, Charles F. Orthwein, and others. For former opinion, stating the facts in the case, see 21 N. E. Rep. 430. The village appeals. Affirmed.M. Millard, (Wm. P. Launtz

, of counsel,) for appellant.

R. F. Wingate, for appellee.

WILKIN, J.

This is an appeal from a decree of the circuit court of St. Clair county rendered in pursuance of the remanding order of this court in the case of Orthwein v. Thomas, 127 Ill. 554, 21 N. E. Rep. 430. After the cause was reinstated in the circuit court Orthwein filed a supplemental cross bill, setting up that sicne the filing of his original corss bill, in which he alleged that the undivided two thirty-fifths part of the premises in controversy was still owned by the heirs of Susannah Osborn, deceased, or others claiming under them, he had by purchase become the owner of said interests, thereby becoming the owner of the whole of said real estate in fee, and he prayed that upon a final hearing the court would by its decree establish the title to said premises in him. To this supplemental bill the village of Brooklyn filed its answer, denying the sources of title through which the complainant therein claimed to have acquired the title to said two thirty-fifths, and denying that he was the owner of the whole of said premises, and entitled to the relief therein prayed. On a hearing the decree of the circuit court was in conformity with the prayer of said supplemental cross bill, from which the village appeals.

It appears that prior to the filing of said supplemental bill the village had placed on file in the circuit court an amended answer to the original cross bill, which on motion of Orthwein the court ordered stricken from the files, and that action of the court is one of the grounds upon which a reversal of the decree below is here urged. The only object of the amended answer was to again put in issue the title of the premises in question as between the village and the heirs of Susannah Osborn or their grantees, and that on grounds which, if tenable at all, existed at the time of the former hearing in the circuit court of St. Clair county, and hence at the time of the decision of this court reported in 127 Ill., and 21 N. E. Rep., supra. It did not pretend to set up any matter occurring since the order of remandment therein made. It is also assigned for error that the cross bill as originally filed shows no grounds for relief in a court of equity, and that both it and the supplemental cross bill should have been dismissed as to said village. Each of these grounds of reversal are urged upon the theory that, notwithstanding our former decision, it was the duty of the circuit court on the remandment of the case to allow the parties to retry the question as to whether Susannah Osborn was the true source of title to the premises. In passing upon the record before us when that decision was made, we said: ‘Appellant (Orthwein) claims to be the owner in fee of thirty-three thirty-fifths of the premises in controversy by a chain of conveyances from the children and descendants of the children of Susannah Osborn. That the conveyances relied upon had the effect of vesting in appellant the fractional interest, if any they had, of such of the heirs of Susannah Osborn as conveyed to him or his grantors in the premises in controversy is not denied; but it is insisted on behalf of the village of Brooklyn that appellant is not entitled to the relief prayed for in his cross bill because- First, Thomas Osborn was the owner in fee of survey number 764; and, second, if Thomas Osborn was not such owner, any claim based upon the title of Susannah Osborn is barred by lapse of time and by estoppel.’ Our...