Worley v. Ehret

• Decision Date: 22 January 1976
• Docket Number: No. 75-239,75-239
• Citation: 343 N.E.2d 237,36 Ill.App.3d 48
• Parties: Donald L. WORLEY, Plaintiff-Appellee and Cross-Appellant, v. Grace EHRET, Defendant-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 237

343 N.E.2d 237

36 Ill.App.3d 48

Donald L. WORLEY, Plaintiff-Appellee and Cross-Appellant, v. Grace EHRET, Defendant-Appellant and Cross-Appellee.

No. 75-239.

Appellate Court of Illinois, Fifth District.

Jan. 22, 1976.

Rehearing Denied Feb. 27, 1976.

Sam S. Pessin, Belleville, for appellant and cross-appellee.

Von Allan Carlisle, William W. Warren, Carlyle, for appellee and cross-appellant.

JONES, Justice.

This case and the companion case of Worley v. Jansen, 343 N.E.2d 246 (opinion filed today) arise out of the same or closely related facts. The issues in the two cases are substantially the same and oral argument was consolidated. Therefore, although separate opinions are being filed in the two cases, the discussion of the facts and the issues as set out herein will be applicable, except where noted otherwise, to the opinion in Worley v. Jansen.

Plaintiff, Donald L. Worley, brought a forcible entry and detainer action against* defendant, Grace Ehret, because of her occupancy of a portion of land belonging to plaintiff. The court awarded possession of the land to plaintiff and allowed defendant slightly over five months to remove a clubhouse and other improvements which had been placed on the land by defendant and her deceased husband, Steve Ehret. Defendant has appealed and plaintiff has cross-appealed.

Plaintiff is the owner of a tract of land of approximately 136 acres in Clinton County. Previously title to the land had been held in joint tenancy by plaintiff's parents since 1954 or 1955 and prior to that time by plaintiff's maternal grandfather since 1912. In January 1968 plaintiff's father died, and in March 1968 plaintiff's mother, being the surviving tenant, conveyed title to the property to plaintiff.

Of the 136 acres 55 or 65 were tillable and for 25 years or more the Worleys had had a tenant on the land who took care of planting and harvesting crops. Neither plaintiff nor his parents had lived on the land during that period.

In the fall of 1969 plaintiff received a notice from the office of the Agriculture Stabilization and Conservation Service, a federal agency, to come into that office to discuss wheat allotments for the land. While he was there, plaintiff's attention was called to an aerial photo map so that he might point out where he had planted and where he intended to plant wheat. As a result of viewing the map, it appeared to plaintiff that several buildings (which he knew to be clubhouses or cottages of the Ehret, the Jansen, and the Robben families) were on his land. In May 1970 plaintiff approached these parties concerning the possible problem; however, no solution was forthcoming. Thereafter, in June 1970, plaintiff employed a land surveyor to determine the boundaries of his land and to discover whether the clubhouses were, in fact, within those boundaries.

The survey was completed in February 1971 and showed that defendant occupied a parcel of land consisting of approximately 30,000 square feet, three-fifths of which was within the boundaries of the Worley property; that the Robbens occupied approximately 20,050 square feet, four-fifths of which came within the boundaries of the Worley property; and that the Jansens occupied approximately 66,000 square feet, slightly less than half of which came within the Worley boundaries. In each case a clubhouse had been built on that portion of the land which came within the Worley property lines. The survey also revealed that each of these three parties held deeds to land consisting of the same number of sqaure feet as that which they occupied but which was totally within the Worley boundaries and some distance from the land which each party actually occupied. The following map illustrates the relative locations of the various pieces of property concerned.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The circumstances under which defendant came to occupy the parcel of land here involved and to hold a deed to the parcel of land which is completely within the Worley boundaries are as follows. In 1955 a man named Alfred (Pickles) Von Alst executed three deeds which purported to convey three separate parcels of land located entirely within the Worley boundaries. In each instance of the three deeds made by Von Alst, he took the purchaser to the lot purportedly conveyed and marked off the boundaries by notching trees with an ax. The areas so marked were the parcels of land which eventually came to be occupied by the Robbens, Thomas Jansen, and the defendant and her husband. The property described in each of the three deeds was completely different than the property so marked by Von Alst as indicated by the map. One of these transactions occurred between Von Alst and Wilbert and Celia Sellers in 1955. Later during 1955 the Sellers executed a deed with the same description to the Ehrets and the Ehrets then began to occupy the area which Von Alst had marked off for the Sellers. Although the tract in question is located in a remote, rough, wooded area, neither prior to the purchase and deed nor prior to their occupancy and improvement of the tract did compounded by the fact that they also failed to obtain an abstract of title, title in the Ehrets cause a boundary line survey of their tract to be made. This omission was surance, record title search or any evidence or opinion of any nature which would indicate the worth of the title they acquired. Apparently, no survey or title search was made by the Sellers either.

By a similar sequence of events, although including a greater number of transfers, Jansen and Robbens eventually came into possession of the land which they occupied while holding, in each case, a deed describing completely different land.

Although it is not clear from the record upon what authority Von Alst claimed the right to make the transfers that he did make, suffice it to say that neither Von Alst nor anyone transferring to Von Alst, could trace his right to convey the land described in these three deeds, or the land marked off by Von Alst, to the Worleys, and defendant was accordingly holding under a spurious title.

On August 19, 1971, plaintiff made written demand for possession on Thomas Jansen and on Henry and Elizabeth Robben. The next day plaintiff made written demand for possession on defendant, Grace Ehret. On November 11, 1971, defendant obtained an injunction in St. Clair County prohibiting plaintiff from proceeding in Clinton County to litigate the issues of title and right to possession of the land claimed or occupied by defendant in Clinton County. On December 10, 1971, plaintiff brought a forcible entry and detainer action in Clinton County seeking possession of the land occupied by Jansen and the Robbens. On May 13, 1974, plaintiff obtained an order dismissing the injunction previously granted defendant in St. Clair County; and, on May 31, 1974, plaintiff made another written demand for possession on defendant. Subsequently, on June 7, 1974, plaintiff brought a forcible entry and detainer action in Clinton County seeking possession of the land occupied by defendant and seeking compensation for the use of that land during the five years immediately preceding the institution of the action.

In the forcible entry and detainer action out of which the instant appeal arises, defendant, Grace Ehret, asserted in her answer and counterclaim the defense of laches and asked for an injunction restraining plaintiff from interfering with her use of the land and for any other equitable relief deemed appropriate by the trial court. After the trial, but prior to the decision of the court, defendant filed a motion to amend her answer and counterclaim to include a request for an equitable lien. The motion was allowed by the court. On February 2, 1975, the court entered a judgment awarding possession of the land occupied by defendant to plaintiff on July 15, 1975, and allowing defendant until that date to remove the improvements.

Defendant has appealed from the refusal of the trial court to apply the doctrine of laches and the refusal to declare an equitable lien in favor of defendant. Plaintiff has cross-appealed from the trial court's allowing the defendant to remove the improvements.

Several issues have been raised and can be summarized as follows: (1) whether the description of the land in the complaint was sufficient; (2) whether the trial court erred in refusing to apply the doctrine of laches; and (3) whether the remedy afforded by the court's judgment was appropriate.

With respect to the first issue raised, there is merit to defendant's contention that the description of the land in the complaint was not sufficient. The complaint describes an area of land consisting of many acres, whereas the entire area of land occupied by defendant is less than three-fourths of an acre. That portion of the land occupied by defendant which comes within the Worley boundaries is less than half of an acre. (See the dashed line on the above map for the area described in the complaint against defendant, Grace Ehret.)

It is required by statute and well established by case law that the description of the property in an action of forcible entry and detainer must be made with reasonable certainty. (Ill.Rev.Stat., ch. 57, sec. 5; Schaumtoeffel v. Belm, 77 Ill. 567; Maloney v. Shattuck, 15 Ill.App. 44; Preston v. Davis, 112 Ill.App. 636; Spoor v. Meyer, 152 Ill.App. 470.) The normal test of the certainty of the description is whether an officer executing a summons would be able to locate the premises from the description. (Schaumtoeffel v. Belm; Maloney v. Shattuck; Preston v. Davis.) It is readily apparent that the description in the complaint against Grace Ehret, covering an area of land many times greater than that occupied by her, falls short of this test.

On the other hand, it is also well established that where the defendant in a forcible entry and detainer action proceeds to trial without objection...