APPEAL from the Circuit Court of Coles County; the Hon. JOHN
F. SPIVEY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 27, 1961.
Defendants, the heirs of Granville S. Raper, have appealed directly to this court from a decree of the circuit court of Coles County in a suit to quiet title, finding that plaintiff Bernice Ellis and counterplaintiff Owen Ellis were tenants in common of a fee simple absolute to certain property under the will of Granville S. Raper.
The essential issue is whether Granville S. Raper, the devisor, held a fee-simple title to the controverted property, either by deed, or by court decree, or by operation of the Statute of Limitations.
The controlling facts are that on September 27, 1901, Granville F. Raper and Mary H. Raper, his wife, in consideration of love and affection and $3,000, conveyed to their son, Granville S. Raper, "his lawful heirs and assigns forever," the following described real estate: "The North West quarter of the South East quarter of section number twenty (20), township Fourteen (14), North of Range Nine (9) East of the Third (3d) principal Meridian, situated in the County of Coles, in the State of Illinois."
After a provision releasing homestead rights, the deed contained the following provisions:
"This deed is made subject to the following conditions
First that the title and right of possession in the above described land shall remain in the aforesaid grantors, until after their death.
Second at the death of the said grantee, the title to the aforesaid land, shall pass direct to said grantee's lawful children only.
Third in case said grantee shall have no children, then said land or real estate shall pass direct by title, to said grantee's nearest relation by blood, or consanguinity."
Granville F. Raper died in 1910, and Mary H. Raper died in 1917. In August, 1940, Granville S. Raper filed suit in the circuit court of Coles County to remove a cloud on title of the property, which consisted of some 40 acres of unimproved land. He designated as defendants his brother, A.H. Raper, and his nieces and nephews, who are parties herein, including Myrtle Geyer, Irene English, Elmer Conner, Fain Conner, Beatrix Shannon, Paul Raper, Alfonso Raper, Glen Cruzan, and the unknown heirs and devisees of Laura Raper, deceased, and of James Raper, deceased, and all unknown owners. The complaint alleged the 1901 deed, but a typographical error in the legal description referred to the property as being in section 25 instead of section 20. However, there was annexed to the complaint a copy of the deed, which contained an accurate legal description of the property. The complaint further alleged that the grantors, Granville F. Raper and Mary H. Raper, are deceased; that the grantee, Granville S. Raper, took and has continuously remained in open and notorious possession of the land; that he has no children and does not expect to have any; that there were certain conditions attached to the deed which are void, but which constitute a cloud on the title so that it is difficult to sell the premises. Consequently, the complaint prayed that fee-simple title be declared to be in plaintiff Granville S. Raper, and that the cloud on the title caused by the provision in the deed be held to naught.
Summonses were issued in that suit, personal service was had on A.H. Raper, an affidavit for publication was filed, and publication, correctly describing the property, was had as to all the remaining defendants, with all the requisite affidavits and certificates. No answer to the complaint was made by any of the defendants. On October 8, 1940, a decree was entered making findings in accordance with the allegations of the complaint, and granting the relief requested, but containing the same error in the legal description. That decree also recited that defendant A.H. Raper was personally served, that the requisite affidavits for making unknown owners parties defendant were filed, that notice by publication as provided by the statute has been given all other defendants, and that the court had jurisdiction of the subject matter and the parties.
Within 30 days after the entry of said decree, Granville S. Raper filed a petition to set it aside and for leave to amend the complaint on its face by correcting the section number in the legal description, from 25 to 20. On November 12, 1940, a second decree was entered. It recited that due notice had been given by plaintiff's attorney by personal service and by publication to all the named defendants and to all those claiming an interest in the property, which was correctly described, and reiterated that the court had jurisdiction of the parties and the subject matter. The decree also recited that on October 19 (the docket entry refers to the date as October 26), Granville S. Raper was granted permission to amend his complaint on its face, and that a rule was entered on defendants to answer within 10 days, but that they failed to answer and defaulted. This decree, just as the one of October 8, recited that upon the death of the grantors of the deed to Granville S. Raper, the restrictions in the deed became null and void, and that Granville S. Raper has a good fee-simple to the property, which was correctly described again. No appeal was taken from that 1940 decree.
On June 21, 1955, Granville S. Raper executed his last will and testament, and, after making certain specific bequests which did not include the property in question, he devised the remainder of his property, real and personal, to Bernice Ellis, who was the daughter of his brother Harry (A.H. Raper), and Owen Ellis, her husband. Granville S. Raper died on July 21, 1957. Shortly thereafter, Bernice Ellis instituted the present suit to remove a cloud on title, or alternatively for ...