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Argument for Appellant.

had become insecure by the great Chicago fire. It was not intended to take the place of ejectment proceedings, and deprive a man of his right of trial by jury, except in cases where the remedy at law was inadequate, or when the prime purpose of the petition was to establish the title to real estate rendered thus insecure.

When the prime purpose of the petition is to evict a man from premises he is in the adverse occupancy of, a court of chancery will, by right, refuse its aid when the remedy is. adequate in a court of law.

The trust deed from Gormley, its foreclosure, and the subdivision and ordinance complained of, are all acts which have occurred since the fire, and so far as the rights of the petitioner were concerned he could have obtained them without any evidence relating back to the fire. The right to possession being purely a question for a jury, a court of chancery should have refused to take jurisdiction. Lewis v. Gocks, 23 Wall. +66; Kilian v. Ebbinghaus, 110 U. S. 568; Fussell v. Gregg, 113 C. S. 550.

The Supreme Court of Illinois has decided that under the Burnt Records Act, a complainant out of possession may file a petition against a defendant.in possession; but these cases can be regarded in no other light than in special instances when the remedy at law is inadequate.

This doctrine is in conflict with the entire principle of equity practice, for under the general principles of chancery jurisdiction to remove a cloud or to confirm or establish titles, a complainant out of possession could not file a petition against a defendant in possession; and if the act in question can be sustained only on the ground that it applies to all cases, regardless of the question, “ Is there an adequate remedy at law?" then the act is unconstitutional because it would deprive the defendant of his right to trial by jury. The constitutionality of the act can be sustained on tlie principle that it is only intended to supply a loss when courts of law have not the remedy to grant the relief sought. See Ilolland v. Challen, 110 U. S. 15.

There was no relinquishment or waiver of the homestead of said Michael Gormley, it being that part of Addams Avenue.


Counsel for Appellee.

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between Grove and Bluff streets, upon which this house and barn stand, and where he has resided for over forty years, and the court clearly erred when it decreed said Gormley to surrender up possession and remove his buildings therefrom, or be evicted by the United States marshal. The homestead, unless expressly waived, would be paramount to any easement that appellee could have ever acquired. The Circuit Court expressly decrees the legal title to said slip of ground in Michael Gormley. Under what process of reasoning, can it decree away the homestead which he has never relinquished or abandoned ?

The petitioner out of possession and the appellant in possession, it cannot be said that appellant obstructed the street. To have acquired an easement it was necessary for appellant to be in possession of the property, to which, and from which, he claimed the right of easement of the appellant's premises.

In Cooper v. Detroit, 42 Michigan, 584, it is held that where a highway has been extinguished, it can only be renewed in the same way that would turn other lands into public highways. After the passage of the ordinance vacating the streets

. the fee reverted immediately to the appellant. The acts of the village in this respect were either legal or illegal. If legal, no court has the power to set them aside. If illegal they are void, and would be so held by a court of law; and consequently there is no necessity for resorting to a court of equity.

The decree goes further than the petition or bill will warrant. There is no prayer or_allegation contained in the bill warranting the court to decrée the appellant to surrender the possession of the strip of land cocupied by him as a homestead. The bill or petition seeks the possession of certain lots and blocks, and not the intervening space between any such lots or blocks, and I submit to this honorable court, without further argument, that under the prayer for general relief, a court cannot legally decree one party to surrender to another the possession of land not specifically asked in the bill.

Mr. Charles E. Pope, Mr. Alexander McCoy and Mr. Charbes B. McCoy for appellee.

Opinion of the Court.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

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Upon the 8th and 9th of October, 1871, a memorable conflagration destroyed a large part of the city of Chicago, including the court-house and the entire records of the county of Cook, in the State of Illinois, in which the city of Chicago was situated. An act was thereupon passed by the general assembly of that State, appro" ed April 9, 1872, to remedy the evils consequent upon the destruction of public records. Laws Illinois 1871–2, p. 652, which act is now chapter 116 of the Revised Statutes of Illinois. 2 Starr and Curtis, 1993. That act provided that in case of such destruction, the courts of the county wherein it occurred, having chancery jurisdiction, should have power to inquire into the condition of any title to or interest in any land in such county, and to make all such orders, judgments and decrees as might be necessary to determine and establish said title or interest, legal or equitable, against all persons known or unknown, and all liens existing on such lands, whether by statute, mortgage, deed of trust or otherwise; that it should be lawful for any person claiming title to any lands in the county at the time of the destruction of its records, and for all claiming under such person, to file a petition in any court in the county having chancery jurisdiction, praying for a decree establishing and confirming his said title, which petition should set out the character and extent of the estate in the land in question claimed by the complainant or petitioner, and from whom and when and by what mode he derived his title thereto; the names of all persons owning or claiming any estate in fee in, or who should be in possession of, said lands or any part thereof, and also all persons to whom any such lands had been conveyed, and the deed or deeds of such conveyance recorded in the office of recorder of deeds since the time of destruction of the records and prior to the filing of the petition ; and their residences, so far as the same were known; that all persons so named in the petition should be made defendants and notified of the suit by summons or publication in the same manner as required in chancery pro


Opinion of the Court.

ceedings in the State, unknown owners or claimants to be brought in under the designation of "to whom it may concern; " that any person interested might oppose the petition, demur to or answer it, or file a cross-petition if he desired to do so; and that the decree entered in the proceeding should be, as to the title found, forever binding and conclusive, except against minors and insane persons, and persons in possession or to whom the lands had been conveyed and the deeds recorded since the destruction of the records and prior to the filing of the petition, and not made parties defendant by name. The act also contained various provisions in protection of married women, insane persons and minors, and all defendants not served with summons were given one year after entry of decree to ask its vacation on petition; and the rules and regulations governing courts of chancery in Illinois were declared to apply to proceedings under the act, sò far as not inconsistent therewith.

By numerous decisions of the Supreme Court of the State of Illinois it has been determined that a petition to establish title under what is known as the “Burnt Records Act,” need not show that the petitioner was in possession of the land or that it was vacant and unoccupied, as required in a bill to quiet title, the act authorizing the petitioner to make all parties in possession or claiming an interest in the land parties defendant to the petition, creating a clear and marked distinction between a case of this character and such a bill; that the court is authorized and required to investigate the interest of all the parties in the premises in question, and to decree in favor of the better title; that all that is required in respect to adverse claimants or their titles is, that such claimant shall be named in the petition and made defendant; that nothing more is required to give the court jurisdiction under the statute to investigate the claims of title to the preinises, and by its decree establish and confirm the title in the person in whom it is found to be vested, and to make all such orders, judgments and decrees as shall be necessary to that end ; that decrees so en

. tered are, as to the title so found, forever. binding and conclusive between the parties; that the statute was in effect a

Opinion of the Court.

statute of limitations, and under the circumstances was not unreasonable, but demanded as a matter of safety in a great emergency; that it was not open to the objection of unconstitutionality, because not providing for trial by jury or otherwise; and that the question whether a jury should be allowed could not arise unless a jury was demaņded. Gage v. Caraher, 125 Illinois, 447; Ileacock v. Hosmer, 109 Illinois, 245; Heacock v. Lubuke, 107 Illinois, 396; Robinson v. Ferguson, 78 Illinois, 538; Bradish . Grant, 119 Illinois, 606; Bertrand v. Taylor, 87 Illinois, 235.

The subject received much consideration from Judge Blodgett, holding the Circuit Court for the Northern District of Illinois, in Smith v. Gage, 11 Bissell, 217, 220, in which he announced substantially the same conclusions. And he remarks. " that the court, on the final hearing of such a case, may, in its discretion as a court of equity, where two conflicting titles are presented, the validity of which can be determined in a court of law, by the express terms of its decree, remit the parties holding such titles to a court of law for the trial of their rights; but this would be purely a matter of equitable discretion, and does not limit the power of the court in this proceeding to settle the entire title by its decree.” In Gage v:Caraher, ubi supra, the Supreme Court of Illinois says: “Whatever may be the power of the court of chancery, where there are controverted titles, to restore, by its decree, the evidences of title in the respective parties as they were before the destruction of the record, and then, in its discretion, remit the parties to a court of law to there try their titles, it is manifest no such course was contemplated by the statute, or necessary in cases under it.” p. 452. In Ward v. Farwell, 97 Illinois, 593, 613, in passing upon the right to demand a trial by jury in the particular instance there in hand, it is justly 'observed : “Where a new class of cases are, by legislative action, directed to be tried as chancery causes, it must appear that, when tested by the general principles of equity, they are of an equitable character, and can be more appropriately tried in a court of equity than in a court of law. And if of this character, when brought in a court of equity they stand,

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