Quinn v. Perkins

Per Curiam : The first objection urged against the decree in this case is one of jurisdiction. Appellants contend, that as the deed made by Cole, the trustee, was not made before 1876, it is not embraced in the provisions of the Burnt Records act, and the court had no jurisdiction. In answer to such contention it may be stated that the petitioner sought no specific relief in respect to the trustee’s deed. The main object of the petitioner was to have the record evidence of his title entered. The cross-bill sought to call in question the sufficiency of the trustee’s deed to pass title. We said in Harding v. Fuller, 141 Ill. 308, .that the destruction of the original instruments and proceedings, and of the records thereof, which showed the title of petitioners prior to October, 1871, authorized them to proceed under the Burnt Records act for the purpose of having their title ¿stablished and confirmed thereunder. The fact which authorizes a court of chancery to inquire into the condition of the title is the destruction of the records. In this case the petitioner traces his title from the United States, and alleges the destruction of the record in 1871, thereby showing a break in his title of record. This is sufficient to show jurisdiction in the court. Gage v. DuPuy, 127 Ill. 216; Gage v. Caraher, 125 id. 447; Gage v. Gentzel, 144 id. 450. The jurisdictional allegations of the petition were properly proved. The solicitor of the petitioner testified that the record of the deed prior to October 8, 1871, was destroyed by fire; that he had made diligent search for the originals of deeds and instruments relating to title filed of record since the destruction of the record, and was unable to find the same, and that originals of all déeds, etc., filed since October 8, 1871, had been lost or destroyed. This was sufficient to admit secondary evidence as to the title, and the abstract and other evidence were properly admitted in evidence and considered. Appellants insist that the notice of sale by Cole, the trustee, was not such a notice as was required by the trust deed. We are inclined to hold the notice of the sale sufficient. But if it were not, the sale was not void, but voidable only, and the grantor in the deed of trust was bound to take steps to set the sale aside in apt time. In this case, Hayden, and the appellants, who claim under him, stood by and suffered the trustee’s deed to stand unchallenged from 1876 to the institution of this suit, May 6,1892,—a period of fifteen years. Such acquiescence and delay in the assertion of equitable rights will estop a party from afterwards availing himself of such rights. (Bigelow on Estoppel, 479; 2 Herman on Estoppel, sec. 989, p. 1064.) There being nothing to excuse this great delay, appellants are estopped from taking equitable steps to set aside the sale by the trustee and allow redemption. Lastly, it is contended the appellee was bound by the twenty years’ limitation. This proceeding was instituted on May 6, 1892, by the appellee, and appellants were in possession of the premises claiming title. The evidence shows that George B. Quinn entered into the possession of the lot and erected a coal-shed thereon some time in January, 1890. No doubt, under proceedings under the Burnt Records act, the Statute of Limitations may in many cases be properly invoked. But this is not such a case. The possession of the land under a claim of title can not defeat the true owner of the title unless such possession is adverse and has so continued for twenty years, and a shorter possession cannot prevail against the title the record of which has been destroyed by fire. (Smith v. Stevens, 82 Ill. 554; Wait v. Smith, 92 id. 385.) The statute does not commence to run until adverse possession is taken. As appellee has obtained all the relief sought by him, it will serve no useful purpose to consider the claim set up by him under the statute of 1839, as his rights are not dependent on the existence of-the limitation. Finding no error the decree of the circuit court is affirmed. Decree affirmed.