French v. Goodman , 167 Ill. 345 ( 1897 )

Mr. Justice Wilkin

delivered the opinion of the court:

It is clear that much of this decree is erroneous, and goes beyond the allegations of the cross-bill upon which it is based. While it treats the title as in Goodman, it assumes to establish a lien upon the property in his favor which could only exist upon the theory that the title is in the Frenches. The Burnt Records act (3 Starr & Curtis, 1896, par. 15, p. 3352,) provides for two kinds of petitions: one to establish title to the premises, and the other to establish liens, whether by statute, judgment, mortgage, deed of trust or otherwise. Paragraph 20 of that act provides that a decree establishing title “shall not in anywise affect any lien or liens to which said fee may be subject, and which have been created since the destruction of such records, whether the same be by mortgage, deed of trust, judgment, statute, mechanic’s lien or otherwise, but shall leave all such liens to be ascertained or established in some other proceeding, or to be enforced as the parties holding them may see fit.” Both the original and cross-petitions in this case are for the purpose of establishing title in the parties Claiming under their respective petitions as owners in fee, and all that is said in either about the trust deed is surplusage, unless the cross-petitioner succeeded by his proof in establishing, as he alleged in his petition, that he derived title to the premises in fee by virtue of that trust deed. In other words, his cross-petition- is not for the purpose of establishing a lien upon the premises by virtue of the trust deed, but for the purpose of establishing the fee simple title in himself.

It is said in the argument of counsel for defendant in error that under his general prayer for relief he is entitled to a decree of foreclosure. We do not regard this position tenable, but if it could be sustained the decree is not one of foreclosure.

We are of the opinion that for the reasons stated the decree of the circuit court must be held erroneous, as it establishes the title to the property in neither of the contending parties, but leaves it dependent upon the satisfaction of the lien established upon the same by the trust deed.

While Dan A. French is confessedly not the real owner of the premises, yet if, as against Goodman, August and John M. French are entitled to have the title confirmed in them, that legal title is vested in their grantee, and no injury results to any of the parties by that fact. So considered, it seems too clear for argument that the legal title is vested in him, unless the cross-petitioner, Goodman, has shown title in himself under the Statute of Limitations. All that is said as to Gossett, or Lyman, the trustee, becoming mortgagee in possession of the property, is material only for the purpose of showing that the mortgage debt was kept alive notwithstanding the lapse of ten years from and after its maturity. There is no such thing, under our statute, as a foreclosure of a mortgage by the mortgagee taking possession of the premises. His possession as mortgagee will not ripen into a title in fee to the premises or bar the equity of redemption. As mortgagee in possession he may unquestionably retain the same until his debt is satisfied out of the rents and profits, or by payment, but when so satisfied he is no longer entitled to the possession and has acquired no title to the property.

The allegation that the Frenches made a quit-claim deed to Gossett for the property is not sustained by proof.

The bankruptcy proceeding, so far as we are able to understand, cuts no figure whatever in the case as between these parties. In our view, therefore, the only ground upon which Goodman can claim to have become seized of the title in fee simple is by virtue of the seven years statute of limitations. That his title from Gossett is color of title made in good faith is not questioned. Neither is it denied that he paid all taxes and assessments upon the property from the date of that deed to the filing of the petition, and even since then, covering much more than the seven years statutory period. The point of difficulty, therefore, in his case, if one exists, must be whether or not he has proved such possession as entitles him to invoke the bar of the statute. The property was vacant and unoccupied, and, while laid off into blocks as a subdivision, was to ordinary observation a part of a large tract of prairie land, which was not, therefore, susceptible of those acts of visible adverse possession and control which usually characterize property claimed to be held adversely. There is testimony, especially that of Lyman, to the effect that such possession and acts of ownership were taken and exercised over the property during these years as the same was susceptible of, such as occasionally visiting the place, employing an agent to look after the same, keeping trespassers from intruding upon it, etc.; and while we do not wish to be understood as holding that, under all circumstances, the proof found in this record would be sufficient to sustain a finding of adverse possession under the Statute of Limitations, we are inclined to hold that, in view of the fact that prior to the conveyance by Gossett to Goodman the Frenches, who held the title in fee, subject to an incumbrance which is admitted in the original petition to have been in excess of the value of the property, abandoned the property to Gossett, he taking possession thereof, adverse possession is sufficiently established against them.

In our view of the whole record we think Goodman’s title is sufficiently established under the Statute of Limitations. The decree below will accordingly be reversed and the cause will be remanded to the circuit court, with directions to enter a decree confirming the title in him.

Reversed and remanded.