Glos v. Cratty

Mr. Justice Magruder delivered the opinion of the court: In this case there is no certificate of evidence in the record, and the evidence has not been preserved by any findings in the decree, or depositions, or master’s report. It devolves upon the party, in whose favor a decree in chancery is rendered, to preserve the evidence that will sustain, the decree; or the decree itself must find that facts were proven, which will sustain it. Where no facts are found in the decree, and there is no certificate of evidence, there is nothing in the record to sustain the decree, and hence there is error which requires a reversal of the decree. (Glos v. Beckman, 168 Ill. 74; Davis Paint Co. v. Metzger Oil Co. 188 id. 295). The bill alleges that the complainant is in possession of the premises. A bill to remove a cloud from title can only be.maintained where the complainant is in possession'of the premises, or where the premises are vacant and unoccupied. If the jurisdiction of the court is based upon the fact, that at the time of the filing of the bill the complainant is in possession of the property, the bill must allege such possession, and the complainant must prove it. (Glos v. Kemp, 192 Ill. 73). In the case at bar the bill alleges, that appellee was in possession of the premises, and the answer denies such possession. There is no finding in the decree upon the subject of possession, and there is no certificate of evidence, containing any proof as to possession. The allegation of possession is material, and, in order to sustain the jurisdiction of the court to grant the relief prayed in this bill, the possession should have been established by testimony, which was not done. In addition to this, the decree fixes no time, within which the money for delinquent taxes and interest and costs should be paid to appellant in case the complainant should elect to make such payment and take the benefit of the decree, and makes no provision for any disposition of the bill as to appellant in case the money should not be paid. In these particulars the decree is erroneous. “The proper practice in such cases is to fix the terms, and, in case complainant declines or refuses to comply with them, to dismiss the bill.” (Gage v. Thompson, 161 Ill. 403; Farwell v. Harding, 96 id. 32; Alexander v. Merrick, 121 id. 606). Where a bill is filed to set aside a tax deed, the decree should provide that the complainant pay within a time fixed in the decree the sum awarded the defendant for his' taxes, etc., paid to obtain the deed and under the deed, and should provide that, if such sum is not so paid, the bill should be dismissed. There is no such provision in the present decree. Counsel for appellant says that certain allegations in the bill of complaint, showing certain alleged defects in the deed, are not denied in the answer, and must therefore be taken as true. This is not a correct statement of the law. Where a material averment in a bill is neither admitted nor denied by the answer, it must be supported by proof. (Wilson v. Augur, 176 Ill. 561; Llewellin v. Dingee, 165 id. 26; Litch v. Clinch, 136 id. 410; Davis Paint Co. v. Metzger Oil Co. supra; Jackson v. Sackett, 146 Ill. 646). For the reasons above stated, the decree of the circuit court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. _ , , 7 , Reversed and remanded.