29 N.E.2d 246 | Ill. | 1940
April 17, 1939, a decree of the circuit court of Christian county rendered in favor of one of the plaintiffs, the First National Bank of Assumption, Illinois, and against one of the defendants, Nancy A. Gordon, removing clouds from and quieting the title to three tracts comprising 92 acres was reversed by this court and the cause remanded, with directions to sustain the defendant's motion to strike the complaint. The propriety of like relief granted to Alta C. Workman with respect to a parcel of 40 acres was not challenged on the appeal. (First Nat. Bank ofAssumption v. Gordon,
Reference is made to our former opinion, (First Nat. Bank ofAssumption v. Gordon, supra,) where we held that it was necessary for the plaintiff to allege and prove actual possession at the time its action was filed in order to maintain a bill to quiet title or to remove clouds from title and, in particular, the charge that the plaintiff was in possession of the tract of 92 acres by virtue of a sheriff's deed when it redeemed from a foreclosure sale as a judgment creditor was not an allegation of actual possession. The facts there recounted are again alleged in plaintiff's amended pleading. Specifically, it alleges that a sheriff's deed to the entire 132 acres was issued to plaintiff and concludes with a new allegation that "plaintiff, First National Bank of Assumption, is now in possession of said premises, farming and operating the same by its tenants and agents." The additional allegation in the amended and supplemental complaint that plaintiff is "now" in possession is merely an allegation that it was in possession when the amended pleading was filed, namely, July 29, 1939. From the preceding allegations it affirmatively appears that its possession was by virtue of the sheriff's deed. Plaintiff does not allege, and apparently could not prove if the allegation were made, that it is now, or was in actual possession of the 92 acres, the only land involved in the present appeal, on April 10, 1937, the day its action was instituted. The first count of plaintiff's amended pleading failed to cure the vice of the original complaint, and was, hence, properly stricken. *245
The ejectment count charged that subsequent to July 1, 1939, the defendants were unlawfully withholding possession of the 92 acres from plaintiff. To recover in an ejectment action it is essential that the plaintiff prove legal title to the premises in himself at the commencement of the action. (McFall v.Kirkpatrick,
The order sustaining the defendants' motion to strike the first count, and the judgment rendered in their favor on the count in ejectment, are each affirmed.
Order and judgment affirmed. *246