Appeal from the Circuit Court of Franklin County; the Hon.
Albert McCallister, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
On January 19, 1979, plaintiffs filed a complaint to quiet title to the mineral estate in certain described real estate located in Franklin County, Illinois. Subsequently, on March 4, 1980, plaintiffs were allowed to amend their complaint to include a second count which sought an order to reconvey the mineral rights to the plaintiffs pursuant to section 255 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 736). On July 2, 1980, the trial court entered an order finding that plaintiffs' action was barred by the equitable doctrine of laches and that title to the mineral estate in question was vested in the defendants. From this order plaintiffs appeal.
The evidence adduced at trial indicates that on February 22, 1909, Robert A. Prowell acquired title to the minerals underlying the real estate legally described as "[t]he South half of the Southwest Quarter (SW 1/4) of the Northeast Quarter (NE 1/4) of Section One (1), Township Five (5) South, Range Three (3) East of the Third Principal Meridian, IN FRANKLIN COUNTY, ILLINOIS." On May 5, 1959, Robert A. Prowell died intestate, leaving as his sole heirs his children, the plaintiffs, Zella F. Bays, Stella M. Dixon, and Harold Prowell.
The mineral estate was sold on October 23, 1944, for delinquent taxes for the years 1933 to 1943. Included in the abstract of title which was admitted into evidence in the trial court was an affidavit for tax deed. The affiant, Walter W. Williams, stated, inter alia, that he was the assignee of Roy Dye who, as agent and trustee for Franklin County, purchased the property at the tax sale. The affidavit also stated that the land was vacant and unoccupied and that an inquiry was made as to the whereabouts of J.H. Prowell, in whose name the land was assessed, and that no one who claimed to own the property could be found. Therefore, according to the affidavit, a notice of the tax sale and purchase was published in the Benton Evening News three times prior to the expiration date for redemption of the property which was October 23, 1946. A copy of this notice was admitted into evidence at trial. The evidence discloses that a tax deed was issued to Walter W. Williams on July 17, 1947.
Mr. Williams died in July 1953, and devised his estate to Mary Lou Williams. On October 26, 1955, Ms. Williams quit claimed her interest in the minerals in question to Aud B. Cox and Dollie M. Cox as joint tenants for the consideration of $500. Both Aud and Dollie Cox died prior to the filing of the instant suit and left as their heirs the defendants, Marjorie M. Cox Matthews, Courtney Cox, Kevin Cox, and Justin Cox.
At trial, held on March 4, 1980, plaintiffs argued that on the previous day they tendered a check for $683.71 which they claimed would fully compensate the defendants for the purchase of the tax deed and subsequent taxes paid by the defendants, including interest at 7% per annum. Plaintiffs urged that, in light of this tender, they were entitled to the mineral estate in the described real estate under section 255 of the Revenue Act of 1939. Plaintiffs further argued that defendants had failed to properly perfect their title in accordance with section 6 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 6) and, therefore, they cannot claim title on a theory of adverse possession.
Defendants replied that under the tax deed issued to Walter W. Williams and the chain of title thereunder, they, as bona fide purchasers, are the rightful owners of the mineral estate in dispute. Defendants maintained that the doctrine of laches should apply so as to preclude the plaintiffs' claim since defendants have paid taxes on the mineral estate for a considerable period of time without notice of any adverse claim. Defendants also pointed out that they have changed their position in reliance upon their ownership of the mineral estate by executing binding contracts concerning this estate. Defendants further argued that they were entitled to the property under section 7 of the Limitations Act. Ill. Rev. Stat. 1979, ch. 83, par. 7.
The evidence established that the property taxes for the years 1955 through 1976 were paid by the Cox family. Taxes for the years 1977 and 1978 were first paid by the plaintiffs as the heirs of Robert A. Prowell; later, duplicate payments for these years were made by the Cox family.
Earl Tucker, the owner of the surface estate, and Falgar Pearce, a person who lived near the real estate involved, testified for the plaintiffs that no minerals had been removed from the property as yet.
Zella F. Bays, one of the plaintiffs, testified that she believed that plaintiffs, as heirs of Robert A. Prowell, owned the mineral estate. On cross-examination she stated that she saw a notice published in the Benton Evening News in 1961 indicating that the taxes on the property were delinquent but she made no attempt to pay them. This notice was admitted into evidence and made part of the record on appeal. Ms. Bays testified that after she became aware that the property was on the delinquent tax roll, she made no attempt to search the county records for over a decade to determine who was paying the taxes, although she was aware that the property was being taxed.
Harold Prowell also expressed a belief that he and the other heirs of Robert A. Prowell owned the mineral estate but testified that he did not search the county records prior to 1974 or 1975 to learn who was paying the property taxes.
Both Zella F. Bays and Harold Prowell testified that they lived in Benton, Illinois, and that Robert A. Prowell lived there between 1944 and 1947. They stated that when they learned that an option regarding the mineral rights had been granted to the Tennessee Valley Authority sometime in the mid 1970s, they searched the county records and discovered that the tax deed to Walter W. Williams had been issued and the subsequent deed to the Cox family executed. This, Ms. Bays and Mr. Prowell testified, was the first time they had actual notice that someone else was claiming the mineral estate.
According to the testimony of Marjorie M. Cox Matthews and Aud Courtney Cox, two of the defendants, the Cox family have executed various leases covering the oil and gas on the property since 1955 and one such lease was in force at the time of trial. They further stated that the Cox family, as members of the Ewing-Northern Coal Association, executed an option covering the coal on the property in favor of the Tennessee Valley Authority which has been exercised. They testified that prior to March 1977, none of the plaintiffs made any claim of ownership of the mineral estate adverse to the claim of the Cox family.
By stipulation, it was established that on March 3, 1980, plaintiffs' attorneys delivered a check to defendants' attorney in the amount of $683.71, made payable to the order of Marjorie Cox Matthews, Kevin Cox, Courtney Cox and Justin Cox. On March 4, 1980, the date of the trial, the check was returned. Aud Courtney Cox testified that defendants did not accept the check because ...