APPEAL from the Circuit Court of Shelby County; the Hon.
FRANKLIN R. DOVE, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
By this direct appeal, involving a freehold, defendants-appellants seek reversal of a decree of the circuit court of Shelby County quieting title of plaintiffs-appellees, as prayed in the complaint, and dismissing the counterclaim of defendants-appellants for partition and accounting.
The material facts are not in dispute. Louisa E. Elliott owned in fee simple at the time of her death on June 4, 1948, a sixty-acre tract of land in Shelby County and some lots in the city of Windsor, also in Shelby County. She died intestate leaving no child or children or descendants of deceased children, but leaving her surviving her husband, Willis A. Elliott, a sister, and numerous nieces, nephews, grand nieces and grand nephews, as her sole heirs-at-law. Letters of administration on her estate were issued March 23, 1949, being more than nine but less than ten months after her death, to one F.W. Bennett.
Willis A. Elliott, the surviving husband of Louisa E. Elliott, deceased, died intestate on November 24, 1949, less than ten months after letters of administration were issued on the estate of his deceased spouse, leaving no child or children or descendants of deceased children and no surviving spouse, but leaving Kit Swiney, Katherine Bottrell, Nell M. Rice, Gwen E. Kircher, Stella Webb Albert, and Gretchen Lee Elam, the descendants of deceased brothers and sisters, as his only heirs-at-law. At the time of his death, no waiver of dower or election to take dower in the real estate of which his wife died seized had been filed.
Both Louisa E. Elliott and Willis A. Elliott were incompetent, and, at the time of the death of each, F.W. Bennett was the conservator of their estate and was the administrator of the estate of Louisa E. Elliott, deceased.
On December 10, 1949, sixteen days after the death of Willis A. Elliott, a sister and two of the nieces of Louisa E. Elliott, deceased, filed a complaint for partition of the real estate of which Louisa E. Elliott died seized, to which the remaining heirs-at-law of Louisa E. Elliott and F.W. Bennett, as administrator of her estate, were made parties defendant. None of the heirs-at-law of Willis A. Elliott, deceased, nor the administrator of his estate were made parties defendant thereto. A decree for partition and a decree for sale were entered in said proceedings on January 19, 1950. Thereafter, on February 11, 1950, Gretchen Lee Elam and Katherine Bottrell, two of the heirs-at-law of Willis A. Elliott, deceased, filed a motion in said partition proceeding for leave to become parties defendant thereto and to vacate the decrees for partition and for sale, alleging that the heirs-at-law of Willis A. Elliott, deceased, were not made parties defendant thereto and that the court did not have jurisdiction of all necessary and proper parties defendant. On February 14, 1950, the master in chancery of the court held a public sale of the property in question pursuant to the said decree of sale and the same was sold to the plaintiffs herein as the highest and best bidders. The plaintiffs entered into possession of the premises on March 1, 1950, and have continued in possession, having paid the 1949 and 1950 taxes thereon and having accounted to no one for the rents and profits therefrom.
On September 1, 1950, an order was entered in said partition suit wherein it was found that Gretchen Lee Elam and Katherine Bottrell, as heirs-at-law of Willis A. Elliott, deceased, had no interest in any of the real estate in question and their motion to be made parties defendant and to vacate the decrees for partition and sale were denied. On January 21, 1951, deeds were issued to the plaintiffs herein for the real estate in question by the master in chancery pursuant to the partition sale.
On May 17, 1951, the purchasers at said partition sale, plaintiffs-appellees herein, filed an amended complaint alleging in substance the foregoing facts, that Kit Swiney Nell M. Rice, Gwen E. Kircher, and Stella Webb Albert, defendants-appellants, as the other heirs-at-law of Willis A. Elliott, deceased, claim an interest in the real estate, and praying that plaintiffs' title be quieted and the supposed interest of the heirs-at-law of Willis A. Elliott, deceased, be set aside and be declared void as a cloud on title of plaintiffs. Defendants' motion to dismiss the amended complaint was denied, whereupon an answer and counterclaim for partition and accounting of rents and profits was filed by the defendants-appellants. After a hearing the decree which resulted in this appeal was entered.
The errors assigned and relied upon for reversal are the trial court's denial of the motion to dismiss the amended complaint, dismissal of the counterclaim for partition and accounting, and entry of a decree quieting and removing cloud on title. Defendants-appellants argue first that the amended complaint is insufficient in that it failed to allege any instrument or written proceedings of record constituting a cloud on title or to contain any offer to do equity. Secondly, they argue that the surviving spouse having died intestate within ten months after issuance of letters of the estate of his deceased wife, and dower not having been perfected in the real estate owned by his deceased spouse, he inherited one-half thereof in fee, which descended to his heirs-at-law.
The plaintiffs were in possession of the property in question and in their complaint alleged that the heirs-at-law of Willis A. Elliott, the deceased surviving spouse of Louisa E. Elliott, were claiming ownership and title to the real estate in question as such heirs-at-law. Two of such heirs-at-law had previously unsuccessfully attempted to interplead in a partition suit and to assert a similar claim therein. An asserted claim of ownership and title arises by operation of law under the provisions of the Probate Act of 1940. It is well settled that equity will not take jurisdiction to remove a merely verbal assertion of ownership as a cloud on title (McCarty v. McCarty, 275 Ill. 573,) and it has been stated that a bill to quiet title applies only to instruments or other proceedings in writing which appear of record and cast doubt on the validity of the record title. (Parker v. Shannon, 121 Ill. 452.) However, an exception to the requirements of a writing of record exists in a case of an interest in land or an apparent interest therein arising by operation of law. (Mostoller v. Liver, 201 Ill. App. 52.) A removable cloud is created by setting up an assertion of rights of inheritance or by an assertion of a claim in a judicial proceeding. (Shults v. Shults, 159 Ill. 654; 44 Am. Jr., "Quieting Title," sec. 12, p. 13, Annotation, 78 A.L.R., p. 262.) The complaint herein sufficiently alleged a cloud on title.
From the facts alleged in the amended complaint here in question, the defendants-appellants had relinquished no property or money interests nor changed their position to their detriment or to the advantage of plaintiffs-appellees. Consequently, there were no circumstances involved warranting an offer on the part of the complainants to reconvey or to tender back funds or to relinquish any interests they claimed. By the last clause of the plaintiffs' amended complaint it is prayed they may have such other and further relief in the premises as may be equitable and just, and, by the filing of said complaint in chancery and the prayer thereof, the plaintiffs submitted themselves to the equitable jurisdiction of the court and placed themselves in a position of being bound by whatever decree in chancery ultimately was entered by the court. Under the facts alleged in the complaint there was no act of equity for the plaintiffs to offer to perform, and this court will not, as a matter of pleading, require a complainant to offer to do or perform a useless or unnecessary act.
As to the second question, the basic issue to be determined is whether or not under sections 11, 18 and 19 of the Probate Act of 1940 (Ill. Rev. Stat. 1949, chap. 3, pars. 162, 170, 171,) where an intestate leaves no child or children or their descendants but a surviving spouse and descendants of deceased brothers and sisters as sole heirs-at-law, a waiver of dower by the surviving spouse is a condition precedent to the vesting in such surviving spouse of an absolute one-half interest in fee in the real estate owned by the deceased spouse at the time of death.
Section 11 of the Probate Act of 1940 (Ill. Rev. Stat. 1949, chap. 3, par. 162,) which was in effect at all times here in question, provided in part as follows:
"The intestate real and personal estate of a resident decedent and the intestate real estate in this state of a nonresident decedent after all just claims against his estate are fully ...