APPEAL from the Circuit Court of Kankakee County; the Hon.
C.D. HENRY, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 23, 1958.
Plaintiff appeals from a decree of the circuit court of Kankakee County allowing a motion to dismiss plaintiff's amended complaint and assessing costs against the plaintiff. A freehold being involved the appeal comes to this court.
Although the only issue to be decided is whether the complaint states a cause of action, a brief look at the history of the freehold involved is necessary to resolve some of the extrinsic difficulties superimposed herein. In 1899, Thomas Daily, Sr., grandfather of the defendants, owned the E 1/2 SW 1/4 of section 29, township 30 N., range 12 W. of the 2nd P.M. in Kankakee County. Peter Boudreau, Sr., father of plaintiff, owned almost all of the W 1/2 of the SE 1/4 of said section 29. The two farms were separated by a fence situated approximately 18 at the north end to 13 feet at the south end west of the true north-south center line of the section. The fence, therefore, was approximately 18 to 13 feet over on the Daily farm. Daily brought an action for trespass quare clausum fregit to have the fence removed. This court in Daily v. Boudreau, 231 Ill. 228, held that the trespass action was barred by the Limitations Act and established the boundary line separating the two farms at the fence line. Title to the Daily farm later became vested in Martha and Genevieve Daily, the present owners and defendants herein.
About 1951, Edith Allendorf brought an action against the Daily sisters for an injunction to restrain them from interfering with her use of a two-rod-wide right-of-way easement lying immediately west of the division fence mentioned above. This court in Allendorf v. Daily, 6 Ill.2d 577, held the easement to be valid and binding upon the defendants and established its location as the east two rods of the southwest quarter of section 29, measured west from the division fence line previously established in the Daily-Boudreau case.
By a conveyance from her father, plaintiff has become the owner of that part of the Boudreau farm described as the W 1/2 of the W 1/2 of said SE 1/4. By her present action, plaintiff now claims the fee title by adverse possession to the same two-rod-wide strip which was the subject of the easement dispute in the Allendorf-Daily case.
Plaintiff first filed a complaint in equity seeking to be declared owner of the disputed strip, that an alleged fence line be declared the boundary line between the two farms, for a mandatory injunction requiring defendants to reconstruct the fence, and for damages and other relief. On defendant's motion, the trial court dismissed the complaint for failure to state a cause of action and gave plaintiff leave to file an amended complaint.
Plaintiff filed her amended complaint in two counts. Count I is the usual complaint in equity to quiet the title to the premises in question and to remove, as a cloud upon plaintiff's title which she allegedly acquired by adverse possession, a decree of the circuit court of Kankakee County entered on February 17, 1956, in the Allendorf-Daily case. Edith Allendorf was made a party defendant in this amended complaint. She later filed a disclaimer of all right, title and interest to the disputed premises and asked to be dismissed from the cause. She takes no part in this appeal. Count II is an action for damages to the property of the plaintiff as a result of an alleged trespass of the defendants.
Defendants' motion to dismiss the amended complaint was sustained by the trial court. Plaintiff elected to stand on her complaint and a decree was entered against her dismissing the cause and assessing costs. Plaintiff's appeal from this decree presents the sole issue of the sufficiency of her amended complaint. We, therefore, direct our efforts towards ascertainment of whether or not the complaint states a cause of action. Stenwall v. Bergstrom, 398 Ill. 377; Robb v. Eastgate Hotel, Inc., 347 Ill. App. 261.
Appellees' brief and argument are principally directed towards sustaining the points raised in their motion to dismiss, and present 10 points relied upon for dismissal. Points 1 and 10 assert that the complaint does not contain a plain, concise statement of plaintiff's cause of action and is insufficient in substance.
Count I of the amended complaint alleges that the plaintiff and the defendants own adjoining tracts of farmland; that since the date of entering into possession of her farm about March, 1929, there existed a fence separating the two farms and the disputed two-rod strip of land was on her side of the fence; that from the date she took possession she has had open, notorious, continuous, uninterrupted and adverse possession of the disputed strip of land up to the fence line; that all claims of other parties to the disputed strip of land are now barred by the 20-year Statute of Limitations; that the defendants wrongfully trespassed upon the lands of the plaintiff, tore down the fence, and claimed title to the disputed land under the terms of a decree of the circuit court of Kankakee County in a certain cause entitled, Edith Allendorf vs. Martha Daily et al., in chancery No. 29053; that this decree upon its face is apparently valid but is void and not binding on the plaintiff herein because she was not a party to nor in privity with any of the parties to that action and she was never served with process in that suit; that this decree constitutes a cloud upon the title of the plaintiff; that Edith Allendorf may claim an interest in the premises and is thereby made a party defendant to the present action. Count I adds a prayer that title to the disputed strip be quieted in the plaintiff; that the alleged void decree be removed as a cloud upon the title of the plaintiff; and that the plaintiff recover damages from the defendants.
Count II is an action of trespass against the defendants seeking to recover for damages to the property of the plaintiff.
Pleadings are designed to advise the court and the adverse parties of the issues involved and what is relied on as a cause of action, in order that the court may declare the law and that the adverse parties may be prepared to meet the issues. (Van Stratten v. Continental Ill. Nat. Bank & Trust Co. 8 Ill. App.2d 100, 130 N.E.2d 224.) The complaint sets forth a plain, concise statement of the plaintiff's cause of action, conforms with the text books on the subject, and is substantially the same as complaints usually recognized as proper in suits to quiet title. (74 Corpus Juris Secundum, Quieting Title, pp. 7-168; Puterbaugh, Chancery Pleading and Practice, 7th ed., vol. 2; Callaghan's Illinois Civil Practice Forms, vol. 7; Nichols Illinois Civil Practice, vol 2, § 1165.) A title acquired by adverse possession may be used as a basis for an action to quiet title (Sheaff v. Spindler, 339 Ill. 540) and the purported invalid decree is such a cloud as will, if proved, be sufficient to sustain the action in equity. A cloud on title is said to be the semblance of a title, either legal or equitable, or a claim of an interest in lands, appearing in some legal form but which is, in fact, unfounded or which it would be inequitable to enforce. Rigdon v. Shirk, 127 Ill. 411; Shults v. Shults, 159 Ill. 654; Hodgen v. Guttery, 58 Ill. 431.
The complaint alleges ownership, adverse possession for the statutory period, trespass by the defendants under a claim of title alleged to be invalid as to the plaintiff, under a decree alleged to constitute a cloud on plaintiff's title, and prays for removal of that cloud and incidental ...