{
  "id": 2829784,
  "name": "Asahel Gage v. Jere Abbott",
  "name_abbreviation": "Gage v. Abbott",
  "decision_date": "1881-06-20",
  "docket_number": "",
  "first_page": "366",
  "last_page": "367",
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      "type": "official",
      "cite": "99 Ill. 366"
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  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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  "last_updated": "2023-07-14T21:09:07.922798+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Asahel Gage v. Jere Abbott."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Scholfield\ndelivered the opinion of the Court:\nUnder the old chancery practice, to maintain a bill to remove a cloud from a title it was essential the complainant should be in, and the party against whom the bill was filed out of, possession. Reed v. Tyler, 56 Ill. 288; Barnett v. Cline, 60 id. 205 ; Reed v. Reber, 62 id. 240; Lee v. Ruggles, id. 427.\nBut this is changed by the act of 1869, which allows such a bill to be filed \u201c whether the lands in controversy are improved or occupied, or unimproved and unoccupied.\u201d Rev. Stat. 1874, p. 204, \u00a7 50.\nSince that enactment we have held, there are only two cases, under our law, in which a party may file a bill to quiet title or to remove a cloud from the title to real property: first, where he is in possession of the lands; and, second, where he claims to be the owner, and the lands in controversy are unimproved and unoccupied. Hardin et al. v. Jones, 86 Ill. 313.\nIn cases, therefore, where the lands are improved, and occupied by the adverse party, this remedy does not apply. In such case the remedy would be by ejectment. Hamilton v. Quimby, 46 Ill. 90.\nFor aught that appears in the bill before us, that may be the case here.\nThe bill should have affirmatively shown a case authorizing the aid of a court of equity, and, on familiar rules of chancery pleading, not having done so, the demurrer should have beeu sustained to the bill, and it was error to overrule it.\nThe decree is reversed and the cause remanded.\nDecree reversed.",
        "type": "majority",
        "author": "Mr. Justice Scholfield"
      }
    ],
    "attorneys": [
      "Mr. Augustus N. Gage, for the appellant:"
    ],
    "corrections": "",
    "head_matter": "Asahel Gage v. Jere Abbott.\nFiled at Ottawa\nJune 20, 1881.\n1. Chancery \u2014 bill to remove cloud. Since the enactment of the statute of 1869, there are only two cases in which a party may file a bill to quiet title or remove a cloud from the title to real property: first, where he is in possession of the lands; and, second, where he claims to be the owner, and the lands in controversy are unimproved and unoccupied. If they are improved and occupied by the adverse party, this remedy does not apply, but the party must resort to ejectment.\n2. A bill to quiet title or remove a cloud from the title to land, which fails to show that the complainant is in possession, or that the premises are unimproved and unoccupied, is bad on demurrer, as not showing a case for equitable relief.\nAppeal from the Circuit Court of Cook county; the Hon. W. H. BabUum, Judge, presiding.\nMr. Augustus N. Gage, for the appellant:\nEjectment is the proper mode of trying title to real estate. Hamilton v. Quimby, 46 Ill. 90.\nAt common law, one out of possession could not maintain a bill to remove a cloud from real estate. This rule of common law is in force in Illinois, except so far as it is modified by the statute. By legislative enactment, the rule is sought to be enlarged so as to include the owner of unimproved and unoccupied real estate. Sec. 49, chap. 22, Rev. Stat. 1874; Harding v. Jones, 86 Ill. 313."
  },
  "file_name": "0366-01",
  "first_page_order": 366,
  "last_page_order": 367
}