Gormley v. Clark

Michael Gormley, the appellant, on the 5th day of March, 1874, made a subdivision, into blocks and lots, of certain property within the limits of the village of Glencoe, Cook county, Ill., entitled 'Gormley's Addition to Glencoe,' acknowledged the plat before a justice of the peace, and had it certified to by the county surveyor, and duly recorded in the recorder's office of said county. He derived title to so much of the property as is involved in this case under a warranty deed from his father, Marcus Gormley, the patentee, dated May 4, 1861, and recorded in the office of said recorder on June 5th of that year. On the 15th of May, 1877, Gormley and his wife executed a trust-deed, which was duly recorded, to one Loeb as trustee, conveying certain blocks and lots in Gormley's addition to Glencoe, to secure a promissory note described therein, which trust-deed was duly acknowledged, and released in due form of law all homestead rights of the grantors in the property conveyed. The premises were subsequently sold under the powers of sale in the trust-deed for default in payment, and conveyed by deeds dated September 10, 1878, some of the blocks to Edward Clark, a block and some of the lots to Sarah J. Condon, and some to others. Edward Clark died October 14, 1882, and Alfred Corning Clark acquired title to the portion conveyed to him, as his sole heir at law. On the 29th day of March, 1884, Sarah J. Condon conveyed the premises deeded to her to Alfred Corning Clark, who by that conveyance, and as heir to Edward, became the owner of blocks 3, 4, 5, 8 to 24, inclusive, and lots 3, 4, 5, 6, 11, and 12, in block 6, in Gormley's addition to Glencoe, in the county of Cook and state of Illinois.

By the charter of the village of Glencoe it was provided that printed or written copies of all ordinances passed by the council of the village should be pose d up in at least three of the most public places therein, within 30 days after their passage and should take effect at the expiration of 10 days after such posting. On the 4th day of October, 1881, on a petition signed by Michael Gormley, the council of Glencoe vacated Adams street, between Grove street and Bluff street, in Gormley's addition, which ran between blocks 8 and 9 of that addition, and upon which Gormley's house, barn, and outbuildings then stood. This portion of the street formed the means of ingress and egress to some 24 lots in these 2 blocks. The ordinance was posted, and a certified copy filed in the recorder's office by Gormley on October 17, 1881. On the 3d of January, 1882, the counsel of Glencoe passed an ordinance, which was in Gormley's own handwriting, vacating some 10 streets and parts of streets in Gormley's addition, which surrounded the property in controversy, and the evidence tended to show that this was done upon representations made by Gormley that he owned the property through which the streets passed, and that, at all events, such was the belief of the members of the council in taking the action in question. On the 12th day of January, 1882, the vote on the passage of the ordinance was reconsidered, and again reconsidered on January 24, 1882; and on the 7th of February, 1882, the council passed an ordinance providing 'that any and all ordinances heretofore passed by this council, vacating any streets or parts of streets in Gormley's addition to Glencoe, or purporting so to do, are hereby repealed, and all the streets and parts of streets shown in the first and originally recorded plat of said addition are hereby declared to be public streets.' The ordinance of January 3, 1882, was never posted by the clerk, and, although the charter required ordinances to be entered at length in an ordinance book, neither the ordinance of October 4, 1881, nor that of January 3, 1882, nor any of the repealing or rescinding resolutions or ordinances, were entered at length in such book. Shortly after the passage of the ordinance of January 3, 1882, Gormley applied to the clerk of the village to post the ordinance, and the clerk replied that he should take the full time allowed him by law to do so, namely, 30 days. He also applied for a certified copy of the ordinance, but the clerk did not give it to him. He then copied the minutes of the meeting of January 3, 1882, and posted such copy and made oath thereto, January 24, 1882, and filed the same on that day in the recorder's office of Cook county. On the 17th of January, 1882, Gormley filed in the superior court of Cook county, Ill., a petition for a mandamus upon the clerk of the village to immediately post certified copies of the ordinance passed on January 3, 1882, as required by law, and to file for record, in the recorder's office Cook county, a duly-certified copy of the ordinance, or to furnish to him (Gormley) a duly-certified copy upon tender of his legal fees. This petition was answered by the clerk, and a replication filed, and the cause tried, a jury being waived, by GARY, J., who rendered judgment dismissing the petition, at Gormley's costs. The case was taken to the appellate court for the first district of Illinois, by which court the judgment of the superior court was affirmed. After the commencement of this action, Gormley sued out from the supreme court of Illinois a writ of error to review the judgment of the appellate court, and the judgment of that court was thereupon affirmed. Gormley v. Day, 114 Ill. 185.

Gormley sold several lots and blocks of his subdivision to different parties; put down sidewalks, and threw up various streets with a plow; street and sidewalk work in the addition was done by the village; and portions of various streets were graded and ditched. After the foreclosure the taxes upon the premises in dispute were paid by Alfred Corning Clark.

On the 31st of March, 1884, Clark filed his petition under the 'Burnt Records Act,' so called, being chapter 116 of the Revised Statutes of Illinos, setting up his title to the property in controversy; alleging the destruction of the records of Cook county and of his record title, on October 8 and 9, 1871, by fire; the proceedings of the council of the village of Glencoe, of the clerk, and of Michael Gormley, and the suits in the superior and appellate courts; and charging fraud on Gormley's part, and threatened irreparable injury; averring that Gormley was in possession of petitioner's land, and about to destroy its market value by procuring a vacation of the streets around it; and asking that council and clerk be enjoined. Petitioner made the village of Glencoe, its council and clerk, Michael Gormley and wife, and others who had claimed some interest in the property, parties, 'and all whom it may concern,' and prayed that the ordinances of October 4, 1881, and January 3, 1882, be declared null and void, and of no effect whatsoever, and for a decree confirming and establishing his title in fee-simple to the lots and blocks mentioned as aforesaid, and that he be put in possession; and that the village, its council and clerk, be restrained from passing or posting any ordinance or ordinances vacating streets or parts of streets adjoining petitioner's lots and blocks. Many of the defendants defaulted, and some answered, including Gormley and wife, upon whose answer the only questions in issue here arise. Upon hearing, the court entered a final decree in favor of Clark, adjudging that he was, at the date of filing the petition, vested with title in fee-simple absolute to the premises in dispute, and confirming and establishing the same; that Gormley was estopped from claiming any informality or defect in the plat of his addition to Glencoe; that he and his wife had no homestead rights in any of the lots and blocks decreed to Clark, or in any streets or parts thereof on which any of the said lots or blocks abutted, as against said Clark, his representatives, heirs, and assigns; that the ordinance of January 3, 1882, was null and void; that title to that portion of Adams street, between Grove street and Bluff street, was vested in Gormley, but subject to an easement in the use of it by said Clark, his heirs, legal representatives, and assigns, as the owner of lots or parts of lots abutting thereon; that said Gormley and wife remove from that portion of Adams avenue on or before a date named, and in default of such removal the marshal remove the buildings thereon located; and that possession of the property in dispute be surrendered to petitioner. The decree dissolved a preliminary injunction which had been granted against the village and its authorities, and awarded no relief in respect to them. From this decree Gormley appealed to this court, and assigns as errors (1) that the court erred in not dismissing the bill for want of equity; (2) that petitioner had a complete and adequate remedy at law, and a court of chancery had nojurisdiction; (3) that the court erred in decreeing void the ordinance vacating said streets in said Gormley's addition to Glencoe; (4) that the court erred in decreeing that said Michael and Eliza Gormley remove their house, barn, and shop from said portion of Adams avenue between Grove and Bluff streets; (5) that the court erred in decreeing to the petitioner an easement in the right of use of Adams avenue, between Grove and Bluff streets, as a street, by said petitioner; (6) that the court erred in decreeing the petitioner entitled to the possession of said lots and blocks in said petition described; (7) that the court erred in decreeing that the appellant surrender up possession of said streets, lots, and blocks to the petitioner.

Millard F. Riggle, for appellant.

[Argument of Counsel from pages 342-344 intentionally omitted]

Charles E. Pope, A. McCoy and ''Chas. B. McCoy'', for appellee.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.