Daniel v. Green , 42 Ill. 471 ( 1867 )

Mr. Chief Justice Walker

delivered the, opinion of the Court:

This was a suit in equity for dower and partition, brought by Henry Green and Elizabeth M. Green, his wife, in October, 1864, against Allen B. Daniel. On the trial it appeared that one Butler in the year 1843 built a house on the premises, and that Wilson purchased of Butler and that the title under which appellant claims to hold is derived from Wilson. On the other hand, it appears that one Powers previously held the property, and died leaving his widow surviving him, who subsequently married Henry Green, but left no children or decendants of children. Mrs. Green therefore claimed one-half of the premises in fee as the heir of her deceased husband, and dower in the other half. Before the trial was had in the court below, Mrs. Green died, and the suit was revived in the name of her children ; and the bill was dismissed so far as it claimed dower.

After the question of dower was thus disposed of, the jurisdiction of a court of chancery over the matter in controversy was at an end. All that then remained of the case was simply, who owned the legal title, the heirs of Mrs. Green or appellant. He was in possession under a title derived from Butler or Wilson. If, as is contended, Powers sold the property to Butler, and the statute of limitations has not barred a recovery, then one-half belongs to Powers’ heirs, who are not parties to the suit, and the other half to the heirs of Mrs. Green. If appellant has any interest in these premises, he holds the whole and not an undivided interest in them. As the bill stood after it was dismissed as to the dower, it was simply to turn appellant out of possession of premises in his adverse occupancy.

To permit this bill to be maintained, would be to hold, that purely legal titles may be tried by a suit in chancery, instead of by an action of ejectment, in every case to recover lands adversely held. There is no fraud,'mistake, accident, trust or other equitable ground of relief, alleged in the bill to confer jurisdiction upon a court of chancery. Without the equity powers of the court have been brought into action by the main purpose of the bill, the court will not try legal titles, and decree the surrender of adverse possession. When it does so, it is only incident to its legitimate equity jurisdiction. The same rule is announced in the case of Green v. Spring, decided at the present term.

The court below had no jurisdiction to decree the partition of these premises on the allegations contained in the bill, and for want of parties, and the decree must be reversed, and the cause remanded.

Decree reversed.