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Ginther v. Duginger

OPINION FILED SEPTEMBER 23, 1955.

HARRY GINTHER ET AL., APPELLEES,

v.

GLEN B. DUGINGER, APPELLANT.



APPEAL from the Circuit Court of Mason County; the Hon. MAURICE E. BARNES, Judge, presiding.

MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:

Plaintiffs filed their complaint in the circuit court of Mason County (1) to fix, determine and establish the boundary line between the lands owned by plaintiffs and lands owned by defendant; (2) to perpetually enjoin and restrain the defendant and his successor or successors in title from obstructing or interfering with the lawful use and enjoyment by the plaintiffs of their premises, and especially of a lane used for ingress and egress from residence and farm buildings to the public road lying west of their farm; (3) to quiet title in them in the premises described; (4) to perpetually enjoin and restrain the defendant and his successors in title from obstructing or interfering with the lawful use and enjoyment of a lane or roadway of plaintiffs established and used by them for more than twenty years prior to the time of filing of the complaint; and (5) praying that defendant be required, following the fixing of the boundary line between the premises of plaintiffs and defendants, to construct and maintain a division line fence in accordance with the statute of the State of Illinois pertaining to division line fences.

Defendant filed a motion to dismiss the complaint and, in support thereof, made an affidavit that, prior to the commencement of this suit, an action in ejectment had been and was pending in the same court between the same parties involving the same transaction, controversy and real estate and that, until the ejectment action was tried, it constituted "another action pending between the same parties for the same cause" as provided in subparagraph (d) of section 48 of the Civil Practice Act. (Ill. Rev. Stat. 1953, chap. 110, par. 172.) A hearing was had and the trial court denied the motion.

Thereupon, defendant filed a motion to stay further proceedings or in the alternative to dismiss the complaint. Defendant set forth in said motion in support of the stay of proceedings the same general allegations as contained in the prior motion to dismiss the complaint and requested that plaintiffs' instant action be deferred and all proceedings thereon stayed. In support of the alternate motion to dismiss the complaint, defendant averred plaintiffs had an adequate remedy as to those things set forth in their complaint by way of defense or counterclaim in the law action of ejectment then pending and that since legal titles only were involved and pending adjudication in a court of law, a court of equity could not take jurisdiction to try these same titles and thereby divest said court of law of its original jurisdiction in such matter. The motion was denied and defendant was ruled to answer.

Answer of defendant was later filed and included therein, as an affirmative defense, the matters which were set forth in his several motions. To this answer, plaintiffs filed their replication denying certain affirmative allegations in the answer, admitting the pending ejectment proceeding but denying the action in ejectment involved the same transaction, controversy and real estate as that involved in the quiet title action and further denied that the ejectment action constituted another action pending between the same parties for the same cause as provided in subparagraph (d) of section 48 of the Civil Practice Act. Plaintiffs further denied the quiet title action should be stayed pending the outcome and disposition of the ejectment action and denied the issues involved in the ejectment proceedings and quiet title action were the same.

The cause was referred by the trial court to a special master in chancery. While there pending, plaintiffs filed an amendment to the complaint. Hearing before the special master in chancery followed.

Upon the trial of the case before the special master, the latter found in favor of plaintiffs and recommended to the trial court the granting of the relief prayed for in the complaint, as amended.

Objections, which now stand as exceptions, were filed by defendant to the special master in chancery's report. The trial court sustained the special master's report and entered a final decree granting the relief prayed for in the complaint as amended, and it is from this final decree that defendant appeals.

A freehold is directly involved and the appeal comes to this court.

Defendant has assigned many errors relied upon for reversal but only some have been argued. It will be considered that those not argued have been waived.

In his first point defendant contends the trial court erred in overruling defendant's motion to stay further proceedings or in the alternative to dismiss the complaint and in overruling the objections to the report of the special master in chancery which raised the same issue, for the reason that plaintiff had an adequate remedy at law and there was a law action in ejectment pending at the commencement of the quiet title action. Defendant divided this point into two sections: In the first he asserts that where an action at law to establish a legal title is pending, a party in possession cannot resort to equity for removal of a cloud from his title, unless there are defenses unavailable at law or unless there is some equitable circumstance in the case of which one of the parties cannot avail himself.

Prior to 1935, section 19 of the Ejectment Act (Cahill's Stat. 1933, chap. 45, par. 19,) provided that the defendant to an ejectment action could demur to the declaration as in personal actions or plead the general issue, under which defendant might introduce in evidence any matter that would tend to defeat the plaintiff's action, except as otherwise provided by the Ejectment Act. Under this provision it was held that estoppel in pais was not available as a defense to an action of ejectment. (Metzger v. Horn, 312 Ill. 173; Wakefield v. VanTassell, 202 Ill. 41; Wright v. Stice, 173 Ill. 571; Winslow v. Cooper, 104 Ill. 235.) Section 10 of the Ejectment Act, as amended in 1935, (Ill. Rev. Stat. 1935, chap. 45, par. 10,) provides that rules of pleading and practice in other civil cases shall apply to ejectment so far as they are applicable and except as otherwise provided by the act. Section 19 of the act was amended permitting a defendant to file a motion as in ordinary civil cases and to answer by way of general or specific denial or by affirmative defense. (Ill. Rev. Stat. 1935, chap. 45, par. 19.) These provisions permit a defendant to plead equitable defenses to an ejectment action to the same extent that he might plead such defenses to other civil actions under the Civil Practice Act. Horner v. Jamieson, 394 Ill. 222; Firke v. McClure, 389 Ill. 543.

That the two causes of action are essentially different would seem obvious upon bare inspection. The wrongs complained of and the redress sought are in no respect alike. The gravamen of the ejectment action is the wrongful entry and ouster; that of the quiet title is a slander of plaintiff's title. Testimony in support of one would not support the other except so far as title might become the subject of inquiry in the ejectment suit which might or might not occur. Moreover the objects of the two actions are entirely different, notwithstanding the main point in dispute may be the same; one attainable in a court of law and the other in a court of equity.

These obvious distinctions between the two cases do not seem to be denied by counsel for defendant; but it is claimed that under our system of practice, plaintiffs herein could have obtained in the ejectment suit all that they seek in the quiet title suit; that they ought, therefore, to have brought forth, in their pleadings in that case, the matters contained in their complaint in this, under penalty of sacrificing all their rights in the premises. Conceding that they might have adopted that course, yet they did not, and we know of no rule of law making it obligatory. Doubtless they were bound to bring forward in the ejectment action all matters of a strictly defensive character which then existed in their favor, or be thereafter precluded; but this cannot be said of other matters constituting a cause of action in their favor. Although under our Civil Practice Act a defendant may set out new matter in his answer constituting a counterclaim and may have any affirmative relief to which he may be entitled, he is not compelled to do so. Such a rule might become most mischievous in its results, for he might be wholly unprepared to make out his case for the want of testimony which at another time might be at his ...


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