198 N.E. 857 | Ill. | 1935
The appellee, the town of Kaneville, (hereinafter referred to as the complainant,) filed a bill in the circuit court of Kane county against the appellant, Lyle B. Meredith, (hereinafter referred to as the defendant,) for a mandatory injunction commanding him to remove a fence on a certain ten-acre parcel of land along the contiguous highway, or so much thereof as would enable the complainant to remove the gravel therefrom, and for a restraining order enjoining the defendant, his heirs, agents, servants and assigns, from in any manner interfering with it, its highway commissioner, agents, servants or employees, from going upon or moving gravel from the land. By its bill the complainant alleged that it acquired the property for the purpose of using the gravel upon the premises and removing the same therefrom in the construction and building of roads within the township of Kaneville. The complainant further charged that the title of the defendant, while consistent with, was subject to its title and its right to remove the gravel. The defendant answered the bill and filed a cross-bill, by which he claimed title to the property in controversy by recorded deed, by twenty years' adverse possession, and by seven years' possession under claim and color of title and payment of taxes, and prayed that his title therein be quieted. The chancellor heard evidence and entered a decree finding that the complainant was not entitled to the relief sought, dismissed its bill for want of equity, and quieted the title to the property in the defendant. The complainant appealed to this court, and in an opinion filed on February 23, 1933, the decree was reversed and the cause was remanded to the circuit court without directions. (Town of Kaneville v. Meredith,
The facts, so far as material to this inquiry, are as follows: Both the complainant and the defendant claim title from a common source, namely, Ann E. Young, a widow, and Frank P. Young and Mae Young, his wife. The complainant's chain of title consists of a warranty deed from the Youngs, dated January 21, 1905, to the Aurora Construction Company; a warranty deed from the construction company to the Aurora, DeKalb and Rockford Traction Company, dated January 23, 1905; a deed from the master in chancery of the circuit court of Kane county in foreclosure proceedings against the Aurora, DeKalb and Rockford Electric Traction Company, dated October *560 6, 1909, to the Chicago, Aurora and DeKalb Railroad Company; a deed from the special master of the circuit court of Kane county in a foreclosure proceeding against the Chicago, Aurora and DeKalb Railroad Company to Israel Joseph, dated January 31, 1923, and a quit-claim deed from Joseph and his wife to Kaneville township, dated January 20, 1928. Each of the deeds covered the premises in question, and those following the deed dated January 21, 1905, were made subject to the condition contained in that deed, as follows: "It is further understood and is a part of the consideration for this conveyance that when the gravel upon the said property hereby conveyed shall be entirely removed, the said premises shall thereupon without further conveyance revert to the grantors herein their heirs and assigns, except a strip of land running through said premises one hundred (100) feet in width to be then designated by the grantee herein and its assigns, which said one-hundred-foot strip shall not revert as aforesaid, but be retained by the said grantee and its assigns for railway purposes. All timber on said premises is expressly reserved by said grantors, who agree for themselves and their heirs and assigns, to remove the same so as to interfere in no way with the removal of gravel from said premises or the construction of railway tracks on or through the same."
The defendant's chain of title consists of a warranty deed from the Youngs to Charles E. Underwood, dated July 21, 1911, which recites that it is made subject to a deed executed by the grantors on January 21, 1905, and a warranty deed from Underwood and his wife, dated March 19, 1924, to Lyle B. Meredith, conveying, with other land, the following described real estate: "The south sixty-one acres of the east half of the northeast quarter of section 25, township 39 north range 6, east of the third principal meridian, in the township of Kaneville, Kane county, Illinois, (excepting therefrom the right of way of *561 the Aurora, DeKalb and Rockford Railway Company)." The south ten acres of this tract is the real estate the title to which is in question in this litigation.
Additional facts and circumstances are disclosed by the record. On July 3, 1928, the complainant cut down a fence which had been on the property prior to January 21, 1905, and entered upon the premises with certain machinery for the purpose of removing gravel. The defendant promptly removed the machinery from the premises and repaired the fence. Two days later he caused to be served upon the complainant, through its highway commissioner, a notice forbidding the complainant, its highway commissioner or employees, from going upon the premises, under threat of criminal prosecution. Neither the complainant nor any of its predecessors in title ever was in actual possession of the land, or, so far as the record discloses, ever entered or attempted to enter upon it prior to July 3, 1928. The complainant filed its bill six months later, namely, on January 25, 1929.
When the cause was before this court on the former appeal the evidence failed to show how the Chicago, Aurora and DeKalb Railroad Company acquired title to the property in controversy. "For all that appears in this record," the court said, "the title to the premises in question is still in the Aurora, DeKalb and Rockford Electric Traction Company." It was accordingly held that on the record then presented the complainant could not maintain its bill for injunction for the reason that it had failed to show title in itself. The decree was not reversed, so far as the complainant was concerned, owing to the failure of the chancellor to grant the injunction sought but for the purpose of giving it the further opportunity to supply evidence with respect to its title. On the other hand, the court also held that the defendant's record title was defective. The defendant's claim of title under both sections 1 and 6 of the Limitations act, on the record presented *562 at that time, was rejected. The court specifically held that section 1 did not commence to run while the Youngs and Underwood were in possession, namely, from 1905 to 1924. It was further held that under the record then before this court (1) the defendant could not avail himself of the fact that his predecessors in title, the Youngs and Underwood, had paid all the taxes assessed on the premises; and (2) that as he had had possession less than seven years prior to the beginning of the suit, section 6 was not applicable. "Having failed to prove title in himself," the court said that the defendant "has no standing in court to have such title quieted." The decision of this court was expressly limited to those issues.
The additional evidence in the record in the present appeal discloses: (1) The deed from the master in chancery of the circuit court of Kane county in foreclosure proceedings against the Aurora, DeKalb and Rockford Electric Traction Company, dated October 6, 1909, to the Chicago, Aurora and DeKalb Railroad Company, which supplied the missing link in the complainant's chain of title; (2) that Frank P. Young, one of the three grantors who are the common sources of title, was a party to that foreclosure proceeding; and (3) that the defendant has continued to cultivate and occupy the land in question and to pay taxes thereon since the filing of the original bill down to the date of the second decree, the same as he had done before the original bill was filed.
A question is presented which requires initial consideration. Although the complainant failed to prove its title until the cause was remanded, it contends that the decision of this court on the former appeal disposed of all the questions raised by the defendant on the present appeal as grounds for reversal. The defendant maintains that with the additional evidence in the record a question is presented which was not before the court on the former appeal and which could not have been raised and determined on that *563
appeal. Where a judgment is reversed by an appellate court the judgment of that court is final upon all questions decided and those questions are no longer open to consideration. If the cause has been remanded, the court to which it is remanded can take only such proceedings as conform to the judgment of the appellate tribunal. If specific directions are given, the court can do nothing but carry out such directions; if not given, it must be determined from the nature of the case what further proceedings would be proper and not inconsistent with the opinion. (Pittsburg, Cincinnati, Chicago and St. Louis RailwayCo. v. Gage,
The new evidence supplied the missing link in the complainant's chain of title. It does not purport, however, to perfect the record title of the defendant, which was held defective on the former appeal. Nor does the present record show a change of circumstances which would distinguish *564 the facts and issues with respect to the defendant's contention that he acquired title by adverse possession for twenty years, conformably to the provisions of section 1 of the Limitations act. The decision of this court on the issues of the record title of the defendant and his claim predicated upon section 1 of the statute are therefore controlling on the identical issues presented for decision on the present appeal between the same parties. By the supplemental answer of the defendant to the amended bill and by the stipulation between the parties it appears that he has paid all taxes legally assessed against the property during the pendency of the suit and until March 1, 1934, the day the decree assailed was entered. On the day named the defendant had paid all taxes on the property for more than seven years, namely, since March 19, 1924. The controlling question presented for decision on this appeal is, in consequence, whether the filing of the bill for injunction on January 25, 1929, operated to suspend the running of the Statute of Limitations. We are not precluded from considering this contention, as the decision in the former appeal is not controlling on this question for the reason that new evidence has been properly introduced in the record now before us which was not, and could not have been, presented on the first appeal.
Section 6 of the Limitations act (Cahill's Stat. 1933, p. 1779; Smith's Stat. 1933, p. 1809;) declares: "Every person in the actual possession of lands or tenements, under claim and color of title, made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise or descent, before said seven years shall have expired, and who shall continue such possession, and continue *565 to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section."
In order to defeat the title of the complainant which was proved on the second trial and establish a bar under section 6 it was necessary for the defendant to prove (1) color of title obtained in good faith; (2) payment of taxes for seven successive years as the holder of such color of title or by someone acting for him; and (3) continuous, uninterrupted possession for the statutory period. These three conditions must exist concurrently, without interruption, and must continue throughout the full seven years. (Glos v. Wheeler,
On March 1, 1934, the day the present decree was entered, the defendant had complied with the requirements of the statute. The complainant argues, however, that the seven-year statute was arrested the day the bill was filed, and that, in consequence, the defendant was precluded from supplying the evidence necessary to prove his title under section 6. The defendant answers, that since the present suit is merely a bill for injunction it does not suspend the running of the statute. Both parties place reliance upon the case of Miller v. Pence,
The complainant argues, however, that as applied to the present case the Miller case actually sustains its position. It is true, as the complainant asserts, that in the course of its opinion the court said the owner of the paramount title can arrest the running of the statute at any time within the seven-year period by bringing his action, and that it would be his own fault if he stood by and allowed the occupant to hold the land until the statutory bar became complete. The language invoked by the complainant was not used in connection with the decision concerning the contention of Miller but was used in considering the contention made by his wife that the statute did not run against her inchoate dower right. In reversing the decree as to Caroline K. Miller only, the court said: "When a person goes into possession of a tract of land with color of title, and remains in possession for seven successive years, and pays all taxes assessed on the land, he may invoke the aid of the statute as a bar to a recovery in favor of a person holding the paramount title to the land, whether such holder may be under the disability of coverture or not. The statute works no hardship. The owner of the paramount title can arrest the running of the statute *567 at any time by bringing his action. If he lies by and allows the occupant to hold the land until the statutory bar becomes complete, it is his own fault. Not so, however, in a case of this character. Here, Mrs. Miller has no right or title which can be enforced while the husband lives. She can bring no action to arrest the running of the statute." The quotation upon which the complainant relies did not relate in any manner to the question of whether the pendency of the action at law suspended the running of the Statute of Limitations. TheMiller case wholly fails to sustain the complainant's position.
Again, in the case of Gage v. Chicago Title and Trust Co.
Both the Miller and the Gage cases were suits in chancery and the intervening actions of ejectment relied upon to toll the Statute of Limitations were actions at law. If the pendency of an action in ejectment does not suspend the operation of the Statute of Limitations, certainly the filing of a bill for an injunction does not preclude one in possession of real estate under color of title by deed of record, and who has paid all taxes legally assessed against the property, from perfecting his claim of title by meeting the requirements of the statute.
The complainant contends, however, that in equity, as well as at law, the Statute of Limitations does not run after suit has been begun by the adverse party, and Manson v. Berkman,
Had the complainant brought an action of ejectment against the defendant on January 25, 1929, it would have been necessary for him to have shown that seven full years had intervened between the day when the first payment of taxes was made and the day of the commencement of the action in order to avail himself of the provisions of section 6 as a defense. (Holbrook v. Debo,
The complainant further contends that one chain of title conveyed to it the right to the gravel underneath the surface and that the other chain conveyed to the defendant the right of possession of the surface. To sustain its contention the complainant invokes the rule that separate estates, such as those to the surface and those underneath the surface, such as coal and minerals, may be created and conveyed distinct from each other, (Catlin Coal Co. v. Lloyd,
The decree of the circuit court is reversed and the cause is remanded to that court, with directions to enter a decree in conformity with the prayer of the cross-bill filed by the defendant.
Reversed and remanded, with directions. *571