APPEAL from the Circuit Court of Franklin County; the Hon. C.
WOODROW FRAILEY, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Plaintiffs filed a suit to quiet title, contending that they are the owners in fee of the mineral estate situated in Franklin County underlying a 40-acre tract of real estate. Defendants' answer raised two affirmative defenses: (1) that the tax deeds supporting plaintiffs' claim were void as a matter of law because the parties interested in the estate at the time of the tax sales did not receive notice of the sales; and (2) that the tax deeds were procured by means of the filing of fraudulent affidavits. Defendants, with the exception of Coyne and Lee Gambill, filed a counterclaim seeking to quiet title in themselves.
Following a bench trial, judgment was entered in favor of plaintiffs on their complaint and against defendants on their counterclaim, the trial court determining that the counterclaim was barred by laches. Defendants appeal from this judgment and raise three issues on review: (1) whether the tax deeds are valid; (2) whether the subsequent payment of taxes cured any defects attendant to the tax deeds; and (3) whether laches was a bar to their counterclaim.
Evidence adduced at the hearing on the complaint and counterclaim reveals that the mineral estate in dispute originally was part of a fee simple estate acquired by M.H. Dorris by warranty deed in 1905. The parties stipulated that Dorris died on April 29, 1928, seized of the mineral estate and that previously he had conveyed the surface of the estate. Ultimately, the surface of the 40-acre tract was conveyed to the Ewing State Bank in 1928 by an administrator's deed executed by Thomas J. Choissen, Jr., as administrator de bonis non of the estate of Thomas J. Choissen, Sr. The deed contained the following legal description:
"The Northwest one fourth [sic] of the Southwest Quarter of Section 12, Township Five (5) South, Range Three (3) East of the Third P.M., in Franklin County, Illinois, subject to a reservation of the coal, oil and gas and certain rights and privileges for mining and removing same as are contained in a warranty deed recorded at page 71 of Deed Record 170 in the office of the Recorder of Franklin, County, Illinois."
Subsequently, the east and west halves of the mineral estate were sold for nonpayment of taxes and were purchased by the Ewing State Bank at a tax sale conducted on January 9, 1946. Two tax deeds were issued to the bank by the county clerk on January 10, 1948. One deed described the premises conveyed as being the mineral estate underlying the east half of the northwest quarter of the southwest quarter of section 12, township 5 south, range 3 east, Franklin County, Illinois; and the premises described in the other deed was the west half of the northwest quarter of the southwest quarter of section 12, township 5 south, range 3 east, Franklin County, Illinois.
On April 6, 1948, less than 90 days after the issuance of the tax deeds, the bank conveyed to Willis and Jennie Payne by quitclaim deed, without reservation, the northwest quarter of the southwest quarter of section 12, township 5 south, range 3 east, Franklin County, Illinois. Willis Payne at the time of the conveyance was president of Ewing State Bank, having attained this position in 1936.
In the trial court, plaintiffs assert that they are owners of the mineral estate by virtue of their status as grantees of Willis and Jennie Payne while defendants contend that they own such estate as heirs of M.H. Dorris.
The evidence adduced at trial included a tax history of the surface and mineral estates from 1940 to 1977. Between 1940 and 1947, these estates were assessed separately, the mineral estate in the name of Dorris and the surface estate in the name of Ewing State Bank. According to Wendell Williams, supervisor of assessments of Franklin County, the severance of mineral and surface estates results in the county assessing each estate separately. The evidence establishes that prior to the tax sale, taxes on the mineral estate were last paid by the estate of Dorris in 1940. Subsequent to the quitclaim deed from Ewing State Bank to Willis and Jennie Payne, there was only one assessment for the 40-acre tract, and the assessment was in the name of Willis Payne. The evidence indicates that between 1948 and 1977, property taxes on the described land were paid by Payne.
The tax sale in 1946 resulted from the nonpayment of the taxes assessed against the mineral interest in the 40-acre tract. In compliance with statutory requirements, two tax purchasers' notices were published by the bank in the Benton Evening News, a newspaper of general circulation in Franklin County. The notices were addressed to "M.H. Doris [sic], any unknown owners and all persons interested" and appeared in print August 26, September 2, and September 9, 1947. On January 10, 1948, C.V. Clark, cashier of the Ewing State Bank, filed two affidavits for tax deed on behalf of the bank. One affidavit referred to the sale of the east half of the mineral estate and the other to the west half. In all other respects the affidavits are identical and state:
"[A]nd the person in whose name the same was taxed or specially assessed, upon diligent inquiry, cannot be found in the County of Franklin Illinois, and the owners of or parties interested in said land * * * or lot * * * upon diligent inquiry cannot be found in said County; that this affiant made inquiry in the vicinity of the land, and checked the public records for said County, and was unable to find any parties interested in said Real Estate."
The tax deeds were issued as a result of the representations contained in these affidavits.
Prior to the issuance of the tax deeds, Willis Payne rented the surface estate from the bank and conducted farming operations thereon. Payne or members of his family farmed the land up to the date of trial. The evidence establishes that subsequent to the tax sale, no operations were conducted on the real estate which is the subject of this controversy for the exploration or mining of coal, oil, or other minerals. Willis and Jennie Payne jointly executed an oil lease in 1972; however, no royalty payments were ever received by the Paynes and there is no indication in the record that exploration was ever undertaken by the lessee.
According to the evidence, prior to 1910, M.H. Dorris resided on South Main Street in Ewing, two houses south of the residence of C.V. Clark, who was the affiant in the affidavits filed in the tax deed proceeding. Ewing is shown by the evidence to be a village of approximately 250 inhabitants for the past 100 years and consists of a school, a bank, a post office, and a store. Clark and Dorris became good friends over the years. The men attended the same church, and Dorris banked at the Ewing State Bank, where Clark was employed. Sometime around 1910, Dorris left Ewing and moved approximately one mile to a farm located near the farm of Willis and Jennie Payne. The Paynes also attended the same church as Dorris. Willis Payne not only knew Dorris but had purchased from Dorris and his children property not related to this proceeding. Willis and Jennie Payne were well enough acquainted with Gladys Irene Whitaker, a ...