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99 Ill. 366

Gage v. Abbott

Illinois Supreme Court

Decided June 20, 1881

Illinois Supreme Court · decided 1881-06-20

<p>Appeal from the Circuit Court of Cook county; the Hon. W. H. BabUum, Judge, presiding.</p>

Key passage — most relied on by later courts

““Under tbe old chancery practice, to maintain a bill to remove a cloud from a title it was essential that the complainant should be in, and the party against whom the bill was filed out of, possession. * * * But this is changed by the act of 1809, which allows such a bill to be filed ‘whether the lands in controversy are improved or occupied, or unimproved or unoccupied.’ Since that enactment we have held that 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. ⅜ * * In cases, therefore, where the lands are improved, and occupied by the adverse party, this remedy does not apply. In such a case the remedy would be by ejectment.””

quoted by 1 later decision, including Jackson v. Simmons

Relies on Hamilton v. Quimby · Reed v. Tyler · Hardin v. Jones

Good law ✅— No negative treatment on recordhow we know

Decided 1881-06-20

How this case has been cited

Cited by 21 later decisions — most recently July 1985

1 federal appellate · 20 state decisions

6018811890190019101920193019401950196019701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Mr. Justice Scholfield

¶1delivered the opinion of the Court:

¶2Under 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.

¶3But 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.

¶4Since 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.

¶5In 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.

¶6For aught that appears in the bill before us, that may be the case here.

¶7The 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.

¶8The decree is reversed and the cause remanded.

¶9Decree reversed.

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