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Scales v. Mitchell





APPEAL from the Superior Court of Cook County; the Hon. FRANK M. PADDEN, Judge, presiding.


Frank H. Scales, appellant, filed his complaint in the superior court of Cook County to quiet the title to certain described premises located at No. 9216 S. Lafayette Avenue, in Chicago, making appellee, Edna Mae Mitchell, the only defendant thereto. The defendant filed an answer, denying all of the allegations of the complaint, and later filed a counterclaim in ejectment. The quiet-title issue was referred to a master in chancery. The court, upon the coming in of the master's report in favor of defendant, dismissed the complaint for want of equity, and entered a judgment of ejectment on the counterclaim in favor of appellee. A freehold is involved, and the appeal comes directly to this court.

A review of the pleadings and evidence is necessary to a correct decision of the case. The complaint charges that plaintiff became the owner of, and entered into possession of, the premises in question in April, 1925, and that he has been in the actual, exclusive, and adverse possession of said premises continuously from then until the filing of the suit in August, 1945, a period of over twenty years. The complaint also alleges, although not material to the twenty years' adverse possession, that he has paid all of the taxes, which have never been repaid to him by the defendant, and that he has also spent large sums of money for repairs, fixtures and valuable improvements to the said premises. The reason for the naming of the defendant appears from the fact she was the apparent holder of the record title.

The complaint alleges that the premises were purchased by the plaintiff from one William G. Cobb for the sum of $800, and fully paid for, and that both Cobb and his wife are deceased, and the defendant is their daughter, and that she claims title by reason of being an heir. The defendant answered, denying all of the allegations in the complaint, and denies that the possession was hostile, and claims that plaintiff was permitted to remain on the premises with the consent of her father. Some three years after the case was filed, the counterclaim in ejectment was started, and plaintiff was ruled to answer within fifteen days, and prepared a plea of the Statute of Limitations, but was two days late in filing same, whereupon the court refused to allow the plea to be filed.

The evidence, practically without contradiction, establishes the following: In the late part of 1924, the then owner of the lot, William G. Cobb, sold the same to the plaintiff for $200 cash, and the balance in installments of $25 each, until the full amount of $800, together with interest, was paid, and at the request of plaintiff a deed to the premises was prepared, by a real-estate man by the name of Williams, to one William Adams as grantee, and both Williams and Scales claim that the next day a quitclaim deed was executed by Adams to Scales, but was left in the possession of Adams for a number of years, and then delivered to Scales. The reason the title was handled in this manner was that at that time Scales was having domestic difficulties with his then wife, and did not wish to place the deeds of record immediately, and when he did take possession the deeds were lost and never recorded.

The evidence is clear beyond dispute that Scales entered upon the premises and began to make improvements. He started out by making a basement, for which purpose it was necessary for him to obtain a building permit, which was issued by the proper department of the city of Chicago. Adams, who was a plumbing contractor, furnished the plumbing and sewer work on the premises. Later a dwelling house or small apartment building was erected thereon. Bills for material, shown by the evidence to be charged to these particular premises, were paid by the plaintiff. The daughter of William Adams, who kept his books for many years, testified she saw the two deeds in the safe of Adams for a number of years. Williams, the real-estate man, is certain of it, and so is Scales. Adams thinks there was only one deed made, and that he kept it only for security, and testified that later, some seven or eight years after the transaction, he delivered that to Scales. Adams never claimed any title to the property other than security for his debt. All of the witnesses agree that Cobb conveyed the property to Adams, and, under the circumstances, Adams was, at least, a trustee for Scales, if the deed was not directly operative under the Statute of Uses. There was no evidence offered on behalf of the defendant, except that she was the daughter and only heir of Cobb, and she admits that no demand of any kind was ever made of Scales for possession of the property.

Upon these facts the master found that the proof of the conveyance was insufficient; that the plaintiff went into the possession of the real estate sometime in the year 1925, and began the erection of a small house thereon, which was subsequently, at least a part of the time, occupied by the plaintiff, and a part of the time rented by him to a tenant. However, the master finds there is not sufficient evidence that plaintiff's possession was adverse to the holder of the record title, because his possession was not based upon color of title. The master completely overlooked the fact that, although plaintiff may not have shown a technically perfect paper title, the evidence fully shows he believed he owned the property, and entered upon it as owner, and continued as such for more than twenty years. The master then makes this singular statement of law, viz., "In Conclusion a principle recognized in all of the law cases, is that unless a party shows title to land in himself it is not for him to complain that there is a cloud upon it. He must have a title, either legal or equitable, to the land to give him a standing in Court before he can contest a cloud upon the title, whether it is created by an encumbrance or an adverse title. Having failed to prove title in himself, the plaintiff has no standing in Court to have such title quieted." If this language is given its full effect, title acquired by twenty years' adverse possession has limitations not hitherto known.

The law of adverse possession has been settled by a score of decisions. The possession must be actual, visible and exclusive. That the plaintiff established these facts in the instant case is undisputed. The possession must be acquired and retained under some claim of title inconsistent with the title of the owner of record. This is shown by three witnesses who testified that William G. Cobb made a deed and delivered the same to Adams. The daughter of Adams also testified that she saw the deeds. Neither the defendant, nor any other witness denies this, so Cobb, having delivered a deed, was no longer the owner from the date thereof, in 1925. The fact that the deeds were lost does not revest the title in Cobb, and the relationship between Scales and Adams, as to the holding of the title, is a matter of no concern whatsoever to Cobb, or his heirs, since in ejectment the plaintiff can only prevail from the strength of his own title, and not from the weakness of that of his adversary. The facts that the deeds were executed and possession taken of the property show beyond question that Scales entered upon the premises with intent of exercising ownership. (Augustus v. Lydig, 353 Ill. 215.) He did exercise such ownership; he paid all of the taxes; he erected valuable improvements; he lived in the property, or rented same; and he did every other thing that an owner does; and both Cobb, and Cobb's heir, stood by for twenty-three years and did nothing, until a master, under a misconception of the law, held the possession of Scales was insufficient to establish the possession was adverse to appellee.

The master further found that the possession was not adverse because the payment of taxes was not continuous. The evidence shows that Scales paid all of the taxes, although not regularly every year, having had to make some redemptions from forfeitures, but his title is not based upon the seven-years' Statute of Limitations, which requires seven successive years of payment of taxes and color of title, but is based upon the twenty-years' Statute of Limitations, which may ripen into title without the payment of taxes at all. In Leonard v. Leonard, 369 Ill. 572, we stated: "No mere words could assert title more satisfactorily than a continued exercise of ownership over the lands for a period of more than twenty years. Using and controlling property as an owner is the ordinary mode of asserting a claim of title and it is the only way a claim of title could be proved to a very large proportion of property. [Citations.]" Where title is based upon twenty years' adverse possession it is not necessary to prove seven years' possession under color of title with the regular payment of taxes. Illinois Central Railroad Co. v. Houghton, 126 Ill. 233; Leonard v. Leonard, 369 Ill. 572.

Again referring to the statement of the master, upon which he apparently based his conclusion, we have specifically held that titles may be quieted, and clouds removed from the titles to lands acquired by adverse possession. In the Leonard case we said: "Title may be quieted and clouds may be removed from the title to land acquired by adverse possession. Such an owner may successfully use title acquired by adverse possession in an offensive action. Such a title may be asserted against all the world, including the owner of record." Harms v. Kransz, 167 Ill. 421; Walker v. Converse, 148 Ill. 622.

It seems to have been overlooked in this case that the title of the plaintiff became vested by his twenty years' adverse possession. The deeds referred to, even though the master was not satisfied as to their execution and authenticity, were not necessary to plaintiff's title. It was the taking possession, with the intention of becoming the owner, and making improvements, and continuing to claim the property against the whole world, and living on it for a period fixed by the statute, which gave him his title, and which then authorized him, as owner, to go into a court of equity to remove anything which appeared as a cloud upon his title.

In Augustus v. Lydig, 353 Ill. 215, we said: "If the owner permits the occupation of his land for a period of twenty years by a party asserting ownership he is barred by the statute from making an entry or bringing an action to regain possession. It is the possession that bars the owner of a recovery. No deed is requisite to the inception, the continuance or the completion of the bar. (Weber v. Anderson, 73 Ill. 439.) It is not necessary that land should be enclosed by a fence or that a house should be erected on it to constitute possession, or that it should be reduced to cultivation. Such improvements or acts of dominion over the land as will indicate to persons residing in the immediate neighborhood who has the exclusive management and control of the land are sufficient to constitute possession. [Citations.]"

Ordinarily we give considerable weight to the report of a master in chancery and the decree of a chancellor sustaining it, but when we find the evidence is all one way, is undisputed, and there is no reason to doubt it, and the master's conclusion is based upon an erroneous conception of the law, then we investigate the record and make findings accordingly. Objections were made to the master's report, and exceptions taken, but all were overruled by the court. This is error. The evidence clearly shows that the plaintiff had acquired title under the well-recognized legal principles applying to adverse possession applied under section 1 of the Limitations Act. Ill. Rev. Stat. 1949, chap. 83, par. 1.

We now come to the counterclaim. It was filed after the master overruled objections to the report. It simply alleges that counterplaintiff was the heir of William G. Cobb, who acquired title to the premises in 1915, and that the counterdefendant entered into the premises and unlawfully withholds possession to the damage of the counterplaintiff. On June 9, 1949, the court entered an order that the plaintiff plead to the countercomplaint within fifteen days. On June 27, 1949, the court entered an order that the report of the master was approved. It also ordered: "It is further ordered that the motion of the plaintiff for leave to file his pleading to the countercomplaint of the defendant be — and the same is hereby denied for the failure to file same in accordance with the order heretofore entered herein, June 9, 1949." And thereupon, without ...

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