Rutz v. Kehn

Mr. Chief Justice Scholfield delivered the opinion of the Court: This was a bill by appellee, against appellant, to remove a certain village plat, and a lease and conveyances of lots laid out and designated on that plat, as clouds upon appellees’ title to certain village lots, whereof he claims to be seized in fee. The facts presenting the questions of law discussed in argument are: On the 22d day of July, 1860, the village of Cahokia leased, by deed of that date, lots 228, 229 and 232 of the third subdivision of its commons, to Nicholas McCracken, for the term of ninety-nine years then next ensuing, and he thereupon, by virtue of that lease, entered into possession of the lots and retained it until he sold and assigned his lease to appellee. The deed described the lots as “bounded on the west by the present bank of the Mississippi river.” After the execution of the deed accretions formed on the west ends of these lots, and, on the 4th of March, 1872, the village of Cahokia caused a plat of such accretions to be made and recorded in the proper office, designating them thereon as 302 of the fourth subdivision, and lots 304, 305 and 306 of the sixth subdivision, of Cahokia commons. On the 23d of November, 1872, the village, by deed of that date, assumed to lease such accretions, by the description of the lots thus designated on this plat, to Illinski, for the term of ninety-nine years then next ensuing. On the 12th of July, 1873, Illinski sold, and assumed to assign and convey, by deed of that date, the undivided one-sixth of the remainder of his term to Butz, and on the 27th of May, 1874, he also assumed to assign and convey, by deed of that date, the undivided one-twelfth of his term to Beveridge. On the 27th of November, 1876, the village assumed to convey the fee in this property, the undivided seven-twelfths to Illinski, an undivided one-sixth, each, to Butz and Lovingston, and an undivided one-twelfth to Beveridge. There were, subsequently, assumed conveyances and reconveyances by Lovingston to Abend, and from Abend to Lovingston, and on the 22d of March, 1879, there was also executed an assumed conveyance by Illinski and wife to Butz, of the whole of the premises. On the 24th of February, 1882, McCracken sold, and assigned by deed of that date, the remainder of his term to appellee. After that, and before the filing of the bill, the village conveyed the fee in the lots described in the lease to McCracken, to appellee. The deeds were all recorded, in apt time, in the proper office, and no question is presented for our consideration in that respect. A motion was made, upon the argument of the case, to dismiss the appeal because a freehold is.not involved, and that therefore the appeal should have been to tbe Appellate Court for the Fourth District. This motion was reserved until the hearing, and must, of course, be disposed of before considering questions upon the merits. The defendants claim the fee of so much of the original lots as falls within the description in the conveyances under which they claim, and which are by the decree below set aside as clouds upon appellees’ title. The decision of the ease must therefore either give or deny to them a' title in fee, and so, necessarily, a freehold is involved in the case. The motion is overruled. Another preliminary question is presented by a motion to strike out of the record certain evidence, because not properly included therein. We do not find it necessary to pass upon that question, since, in our view of the case, the court below decided correctly, even if that evidence be regarded as not properly included in the record. Proceeding, then, to the merits of the case as presented by the record before us, the first question is, did the lease to Mc-Cracken include within its boundaries the accretions formed on the west end of the lots described therein? This is not now an open question in this court. The description in the leases “bounded on the west by the present bank of the Mississippi river,” is identical with that in Cobb v. Lavable, 89 Ill. 331, and we held in that case that it included the accretions formed on the west end of the lots. The next question is, whether appellee is estopped by the acts of his grantor, McCracken, from treating these accretions as not being within the terms of his lease, upon the faith of which in part, Illinski acted in purchasing his lease. Mc-Cracken was in the actual possession of the entire lots, and his lease was of record, when Illinski purchased. The acts claimed as an estoppel are only that McCracken actively participated in procuring the plat of the accretions, to be made by the village. Illinski did not take actual possession of the accretions after his lease was executed and before the purchase of appellee, and there was no public record affording constructive notice to all of the acts of McCracken which are claimed to amount to an estoppel, and there is no evidence that appellee had actual knowledge thereof at or before the date of his purchase, and he was therefore entitled to rely upon McCraken’s actual possession and the terms of his lease, as of record, in determining the character and the boundaries of his lease. The rule is, the privies of a grantor who is estopped are not estopped if they are subsequent purchasers for value, and have no notice that he is estopped. Tiedeman on Real Prop, sec. 731; 3 Washburn on Real Prop. 91, and eases cited in note; Bigelow on Estoppel, (4th ed.) 434, 435. On first considering this case, we were of the opinion that, assuming the correctness of the foregoing conclusions, yet there still remained in the village, after the expiration of the lease to McCracken, the remainder in fee in the soil,’which the village might, by a new plat, re-divide into lots, setting off the accretions in lots, apart from the lots on the ends of which they were formed, as was here done, and that Illinski’s lease, and the conveyances resting on the supposed validity of that lease, should therefore be held valid for the remaining estate in the accretions,—namely, the reversion after the termination of McCracken’s lease thereof,—and so we gave judgment. Subsequent and more careful reflection after listening to further argument, on a rehearing of the case, has satisfied us that we were in error in thus adjudging, and this for two reasons, by neither of which was our attention before sufficiently attracted to appreciate its force. First—It was decided directly to the contrary in Haps v. Hewett et al. 97 Ill. 498, and that decision has become a rule of property, and for that reason, if for no other, it ought not to be now overruled. The only difference between the facts in that case from those in this, material to this question, is, that there it was erroneously supposed that a proper plat pursuant to which the first lease was executed was not made, while here it was erroneously supposed the plat pursuant to which the first lease was executed did not include the property in controversy. In each case both leases covered the same ground, and therefore if the Illinski lease here is good for the reversion after the termination of the McCracken lease, there the Illinski lease must also have been good for the reversion after the’ termination of the Walsh lease. But it was there said: “The lease of the supervisor, to Walsh being authorized by law and regular in every respect, so far as we can discover, the subsequent lease to Illinski, so far as it affected the lot in controversy, was wholly unwarranted, and absolutely void as to Walsh and those claiming under him>.” Second—As held in the case last cited, by virtue of the act of Congress, the inhabitants of Cahokia village were, as a community, by implication, constituted an artificial or corporate body for the purposes of receiving and holding the lands for the benefit of the community, as a body of people, but for no other purpose. And it was then added: “The creation of this artificial body, and investing it with the title to these lands, did not necessarily clothe it with power to convey or otherwise dispose of them; but it was entirely competent for the legislature to authorize it to do so, and provide the necessary agencies through which this might be effected.” The legislature did, accordingly, by several enactments, provide how these lands might be leased and conveyed. The respective powers to lease and convey were therefore purely statutory powers. And the rule in such cases is familiar that those who claim by virtue of the execution of such powers must affirmatively show that they were executed as the statute enacts they shall be. What the statute says can be done, and that only, may be done, and in the manner that it directs. Mix v. Ross, 57 Ill. 121; Dement et al. v. Rokker et al. 126 id. 193 ; Sutherland on Statutory Construction, sec. 454. By the act of February 17, 1841, (Sess. Laws, 65,) the supervisor of Cahokia was authorized to cause the commons to be surveyed and platted, and to lease the same at public auction, to the highest bidder, and by the amendatory act of February 18, 1857, (Private Laws, 1203,) he was authorized to lease at private sale. The term for which the lease might extend, in either case, is limited to ninety-nine years; and, according to the well settled rule of law, this authorizes leases in possession only, and not in reversion or futuro. 2 Sugden on Powers, (3d Am. from 7th Bond. ed.) 310, *346, sec. 10. The fifth section of the amendatory act of March 21, 1874, gives .to the “person or persons entitled to any portion of such title by existing leases, the right to acquire the fee simple title thereto by paying therefor a sum which, at three per cent per annum, will produce annually a sum equal to the rent due yearly under the lease proposed to be extinguished by the purchase.” (See Laws of 1874, p. 67.) This is clearly such a property right that the lessee could not be divested of it, without his consent, by any act of the village or any one representing it. Nor could it, for like reason, be in anywise encumbered or abridged by a subsequent lease. It is, moreover, to be observed, the lease to Illinski does not profess to be of a remainder, but of a present possession, only. We find no cause to disturb the decree below. It is therefore affirmed. Decree affirmed.