Wing v. Sherrer

• Decision Date: 31 January 1875
• Citation: 1875 WL 8289,77 Ill. 200
• Parties: SAMUEL WING et al.v.EDWARD SHERRER.
• Court: Illinois Supreme Court

77 Ill. 200

1875 WL 8289 (Ill.)

SAMUEL WING et al.

v.EDWARD SHERRER.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding.

This was a bill in chancery, exhibited by Edward Sherrer against Samuel Wing, Samuel W. Kroff, Lydia and Alice C. Whitman, Martin J. Whitman, Catharine C. Kroff, Elizabeth Kroff and Rienhard Hageman. The object of the bill and the material facts of the case appear in the opinion of the court.

Mr. GEO. HERBERT, for the appellants.

Messrs. GOUDY & CHANDLER, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Prior to the passage of the act of 1869, a court of equity would not assume jurisdiction to remove a cloud from the title to real estate unless it appeared the owner was in possession. That act extended the jurisdiction of the court so that it might hear and determine bills to quiet title and to remove clouds from the title to real estate where the lands in controversy were unimproved or unoccupied. The reason for the previous rule that obtained, was, the party had a remedy at law. He could assert whatever title he had in an action of ejectment. That equity will entertain a bill to quiet title or remove a cloud from the title to real estate, is now the settled law, and, since the recent statute, it is immaterial whether the party claiming to be the owner is in possession, or whether the lands are unimproved or unoccupied. The exercise of this branch of equity jurisprudence has always been held to be within the sound discretion of the court. The rescission of contracts, the cancellation or delivering up of agreements, securities or deeds, or the specific performance of contracts, are not matters of absolute right upon which a court is bound to pass a final decree, but it will exercise a sound legal discretion in granting or refusing relief, according to what is reasonable and proper under all the circumstances of each particular case.

It may be stated as a general proposition, that, in all cases arising out of fraud, equity has concurrent jurisdiction with courts of law. But parties will be referred to that forum where justice can be most effectually administered and the right most satisfactorily established. As a general rule, it is better, in all cases of a doubtful character, presenting a conflict of evidence, the parties should be remitted to whatever remedy they have at law, although equity might entertain jurisdiction.

Complainant, claiming to be the owner in fee of four lots described, filed a bill to remove a cloud from the title, said to have been cast upon it by reason of a contract of sale to Samuel Wing, purporting to have been executed in his name by Warren & Goodrich, and a deed made in pursuance of that agreement by a person representing himself to be Edward Sherrer, which deed purported to convey the property in fee to Wing.

The authority of Warren & Goodrich to execute any agreement in the name of complainant for the sale of the property, is distinctly denied, and the deed made in pursuance of the contract is charged to be a forgery. Both the contract and the deed were placed on file in the proper office in Cook county, where the property is situated.

Preliminary to any relief, in any view of the case, it must be proven complainant is the owner of the real estate in controversy. By the pleadings, his title is put directly in issue, and the burden of proof rests upon him to maintain it.

The admission that the Edward Sherrer from whom defendants claim title to the lots, is the owner, is not an admission that Edward Sherrer, complainant, is the owner. It is not necessary, perhaps, that complainant should deraign title from the government, but it is necessary he should show title in himself to the property, otherwise he can have no standing in any court. This he has attempted to do, by proving a conveyance of the lots to himself from Peter Shimp, who was and now is a resident of Chicago, where the property is situated, and in whom both parties concede the title was.

No original deed was offered in evidence from Shimp to complainant for the lots; nor do we think any foundation has been laid for the introduction of secondary evidence of its contents. Whatever record of it existed, was destroyed by fire when the court house was burned in 1871. The original deed had been placed in the hands of George Schaffer, in Brooklyn, N. Y., some years ago. Sherrer applied to him for it, but was told it was lost. Schaffer's testimony was not taken, and there is not a particle of evidence that he ever made any search for it. Its destruction is not proven, non constat but it could have been found, had search been made. There was, then, no foundation laid for the introduction of evidence of its contents, either by parol or by proof of the contents of the original abstract of title, if the latter evidence was, in any event, admissible. Excluding this evidence, as it ought to have been, there remained nothing to connect complaina...