Gage v. Curtis
Gage v. Curtis
Opinion of the Court
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.
Reference
- Full Case Name
- Henry H. Gage v. Fred C. Curtis
- Cited By
- 13 cases
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- Published
- Syllabus
- 1. Cloud upon title—who may complain—remedy at law or in chancery. Unless the complainant is in possession of the land, or it is vacant and unoccupied, a bill will not lie to have a deed set aside as a cloud on the title; and where the bill fails to show such jurisdiction al fact, no relief can be granted, but the party will be left to his remedy at law by action of ejectment. 2. Allegations and proofs—must correspond—on bill to remove cloud upon title. On bill to set aside certain tax deeds as clouds on the title of complainant, it is error to set aside any tax deeds other than those described in the bill as affecting the title. A complainant must stand or fall by the case he makes in his bill. 3. The validity of a tax deed, not described in a bill to remove clouds on the title to land, can not be insisted upon by the defendant as a defence to the suit, and much less can it be considered and condemned at the instance of the complainant, when no relief is asked in respect to it.