Gage v. Abbott

99 Ill. 366, 1881 Ill. LEXIS 182

Opinion

Mr. Justice Scholfield

delivered the opinion of the Court:

Under the old chancery practice, to maintain a bill to remove a cloud from a title it was essential the complainant should be in, and the party against whom the bill was filed out of, possession. Reed v. Tyler, 56 Ill. 288; Barnett v. Cline, 60 id. 205 ; Reed v. Reber, 62 id. 240; Lee v. Ruggles, id. 427.

But this is changed by the act of 1869, which allows such a bill to be filed “ whether the lands in controversy are improved or occupied, or unimproved and unoccupied.” Rev. Stat. 1874, p. 204, § 50.

Since that enactment we have held, there are only two cases, under our law, in which a party may file a bill to quiet title or to remove a cloud from the title to real property: first, where he is in possession of the lands; and, second, where he claims to be the owner, and the lands in controversy are unimproved and unoccupied. Hardin et al. v. Jones, 86 Ill. 313.

In cases, therefore, where the lands are improved, and occupied by the adverse party, this remedy does not apply. In such case the remedy would be by ejectment. Hamilton v. Quimby, 46 Ill. 90.

For aught that appears in the bill before us, that may be the case here.

The bill should have affirmatively shown a case authorizing the aid of a court of equity, and, on familiar rules of chancery pleading, not having done so, the demurrer should have beeu sustained to the bill, and it was error to overrule it.

The decree is reversed and the cause remanded.

Decree reversed.