136 Ill. 636 | Ill. | 1891
delivered the opinion of the Court:
Numerous errors are assigned upon the record, but they raise only one issue, and that is, did the plea of defendants in error present a good defense to the petition of plaintiff in error. That it was good as against the title claimed by petitioner through mesne conveyances from the patentee, is admitted, but it is insisted that it fails to show any defense to his claim of ownership, under the Statute of Limitations. This contention is based on the theory that the decree set up in the plea had no effect whatever upon the character of the possession of the petitioner’s grantors, Beid and Higgins, and therefore, it being alleged in the bill that they and petitioner had been in the actual possession of the said property from May, 1864, to the bringing of this action, in 1888, and that such possession was under a connected title deducible of record, petitioner showed a good title under either the first or fourth section of our Statute of Limitations, not met by the plea. It is said that decree was simply declaratory of Mary Hoag’s title as it had existed since January 31, 1863, and had no effect whatever on Beid and his successors, who were in possession of said premises since June 10, 1862. In other words, it being assumed that Beid and Nathaniel S. Higgins were in the adverse possession of said property at the time the Hoag decree was rendered, the nature of that possession was in no way changed by the decree, unless it had the effect to make such possession more clearly adverse.
The legal rights of the parties, counsel say, were not changed by that decree, but simply declared. By this, we suppose, is meant, that a proceeding under the Burnt Becords act can result in nothing more than to establish the evidence of a petitioner’s title, leaving him to assert that title in another and different proceeding. Such, clearly, is not the scope of that act. By section 16 thereof, all persons in possession of or claiming title to premises the title to which is sought to be established,'are made necessary parties. By section 18 such persons may oppose the petition by demurrer, answer or cross-petition. By section 20 the court is empowered “to determine and decree in whom the title in any or all the lands described in said petition is vested,—whether in the petitioner, or in any other of the parties before the court.” Section 21 provides that “the decree shall- be forever binding and conclusive unless appealed from or a writ of error is prosecuted thereon.”
The plea of appellees shows that George W. Reid and Nathaniel S. Higgins, who, plaintiff in error in his petition says, were in adverse possession of said lots at the time, and had been since May, 1864, under a connected title deducible of record, were made parties defendant to the Hoag petition, and duly served with process, and that Reid actually appeared therein.. It also shows, that on that petition it was ordered, adjudged and decreed by the court that the title to said lots was, and is thereby declared to be, vested in said Mary Hoag, her heirs and assigns forever, free from the claim of all of the defendants to said Hoag’s petition, and that said Hoag was entitled to the possession of said lots. We are unable to perceive why that decree does not settle the title to the lots in question, between Mrs. Hoag, Beid and Nathaniel S. Higgins, as effectually as though it had been rendered on a bill to quiet title or remove a cloud from title. If the Statute of Limitations was available to either of said defendants to that petition, they had a right, under the sections of the Burnt Becords act above quoted, to interpose it, and they" were bound so to do, failing in which, and the decree against them becoming final, they are concluded by it, and so is their grantee, the petitioner in this cause. (Smith et al. v. Hutchinson et al. 108 Ill. 666; Gage et al. v. Caraher, 125 id. 453.) Hence possessory title in their favor could not begin to run prior to that decree, as was expressly decided in Bradish v. Grant, 119 Ill. 610. That decree being rendered in 1879, even if it could be maintained that petitioner and his grantors have since then been in adverse possession to the true owners, their possession was without title, and hence the seven years’ limitation relied upon could have no application. ;
In our opinion the plea presented a complete defense to the bill, and was properly sustained by the circuit court. It seems that Julius Mulvey, though not a party to the plea, and as to whom the suit is still pending in the circuit court of Cook-county, was made a defendant to this writ of error. As to him, therefore, the writ of error will he dismissed. The decree of the circuit court as to the other defendants is affirmed.
Decree affirmed.
