Gage v. Curtis

14 N.E. 30, 122 Ill. 520

• Court: Illinois Supreme Court
• Decided: November 11, 1887
• Status: Published

Opinion

Mr. Justice Scholfield

delivered the opinion of the Court;

There are two grounds upon which the decree below must be reversed, without regard to whether the other grounds are well urged.

First—It is neither alleged that complainants are in possession of the property, nor that it is vacant and unoccupied, without one of which allegations the complainants must be remitted to their remedy at law, by action of ejectment. Gage v. Griffin, 103 Ill. 41; Hardin v. Jones, 86 id. 313; Gage v. Abbott, 99 id. 366.

Second — The deeds described in the bill, and which are-sought to be removed as clouds, are, first, a deed made on March 13,1877, pursuant to a sale made on October 30,1875 ;, and second, a deed made on October 16, 1877, pursuant to a sale made on December 4, 1874. But the decree describes, first, deed dated June 20, 1877, made pursuant to a sale on October 7, 1874; second, deed dated March 13, 1877, made-pursuant to sale on October 30, 1874; third, deed dated March 13, 1877, pursuant to sale on October 30, 1874; fourth, deed dated October 15,1877, pursuant to sale on December 2,1874; fifth, deed dated October 16, 1877, pursuant to sale on Decernher 2, 1874; sixth, deed Hated June 26, 1880, pursuant to sale on August 14, 1877; seventh, deed dated July 2, 1880, pursuant to sale on August 14,1877; eighth, deed dated July-15, 1880, pursuant to sale on August 14, 1877; ninth, deed dated June 30, 1880, pursuant to sale on September 4,1877; tenth, deed dated July 14, 1880, pursuant to sale on September 4, 1877. And it is afterwards decreed, that “the herein-before described tax deeds, each and every of them, from and after the time of such payments and such redemptions, have not and do not now constitute or exist as any claim, lien, charge, imposition, cloud or incumbrance upon or against the said Eachel C. Fisher’s undivided one-fourth interest, or the lots so set off to her, nor any of them, * * * and the apparent cloud so by reason of the premises aforesaid existing against or upon said undivided one-fourth interest of said Eachel C. Fisher, as well as the apparent clouds so existing upon or against the title of said complainants, and each of them, in and to the lots, * * * and each and every of them, be and the same is hereby set aside, dispelled, removed, cleared off.” The rule is, that the complainant must stand or fall by the case he makes in his bill. (White v. Morrison, 11 Ill. 361; Rowan v. Bowles, 21 id. 17; Chaffin v. Heirs of Kimball, 23 id. 36; Ohling v. Luitjens, 32 id. 23.) And the decree must conform to the prayer of the bill. Ward v. Enders, 29 Ill. 519 ; Hall et al. v. Towne, 45 id. 493.

The validity of the deeds not described in the bill could not have been insisted on by the defendant as a defence to the suit. [Gage v. Mayer, 117 Ill. 632; Parker v. Shannon, 114 id, 192.) Much less could they be considered and condemned at the instance of the complainant, when they were not described, and no relief was asked respecting them in the complainant’s bill.

The decree is reversed and the cause remanded.

Decree reversed.