Subsequently, upon an application for a rehearing, the following additional opinion was filed:
Mr. Justice Wilkin :This case is now submitted on a second rehearing. It was first taken at the May term, 1890. But two grounds of reversal were then urged: First, estoppel; and second, the decree if permissible is too broad. We overruled the first point, but reached the conclusion that upon the merits of the case the decree of the circuit court should be reversed. The second point was therefore unimportant, and was not considered. A rehearing having been granted, the arguments on both sides were directed to the point upon which the reversal had been ordered, and as our attention was not then called to the objection that the decree was too broad, it again passed without consideration; but being convinced that the ground upon which our former decision rested was untenable, we affirmed the decree of the circuit court for reasons stated in an opinion filed May 9, 1891. At the following November term appellants filed their petition for rehearing, insisting, among other things, that their second point on the first argument was well taken, and that the judgment of affirmance without reference thereto, amounted to an approval of a decree affecting the rights of appellants to lands not involved in this litigation, and deeming it but fair to all parties that due consideration should be given to and an opinion expressed on that question, a second rehearing has been granted.
The insistence is, that the decree annuls and declares void the plat and deeds mentioned in the bill, not merely as to the premises in controversy, but absolutely. The language used in the decree is certainly not as explicit as it should be in confining the order removing the plat and deeds as clouds upon the title to the premises described in the bill, and yet we are inclined to the opinion that when construed with reference to the bill and answer, as it must be, it can not fairly be said to vacate said plat or declare void and of no effect said deeds as to other lands than those described in the bill. However, as the decree must be reversed upon another ground, the objection here urged may be avoided on another hearing, if the same result should be reached.
A second ground of reversal now urged is, that the decree does not find, nor does the proof show, that the complainants were in possession of the premises in question when the bill was filed. It is admitted that the decree is silent as to that fact, and the evidence not being preserved in the record there is no proof of it. Appellants attempt to avoid the force of this objection by insisting that the bill is not one to remove a cloud upon title, but that its object is to set aside the deeds therein mentioned, upon the ground of fraud. In this view we do not concur. The case made by the bill is clearly one to remove a cloud resting upon the title of complainant, and has been so treated by all parties and the courts to the present time. It expressly alleges that complainants are in possession. That allegation, or one that the premises were vacant and unoccupied, was essential to give the circuit court jurisdiction. The allegation as made was specifically denied by the answer, and complainants, to maintain their bill, were bound to prove it. This they say they did, and insist that if appellants desired to question the correctness of the decree below they should have procured a certificate of the evidence, without which this court must presume that the decree is correct. That clearly is not the rule when the decree fails to find the facts. In that case the “complainant can only sustain his decree by preserving the evidence on which it is based in the record, and on appeal or writ of error, if he has failed to do so, the decree will be reversed.” This being a material and necessary allegation in the bill, wholly unsupported either by the finding of the court in its decree or evidence in the record, the decree can not be upheld, and on this ground it must be reversed.
The further point, that the decree is in favor of parties having only an equitable title to the premises as well as the owner of the fee, is not of material importance. Certainly, if error at all, it is not harmful to appellants.
The correctness of the decision announced in the opinion of May 9, on the questions therein discussed, is not now challenged, but the rehearing was asked and a reversal is now urged only upon the three grounds above mentioned. The decree of the circuit court will therefore be reversed for the reason above stated, and the cause remanded to the circuit court of St. Clair county, with directions to proceed in the cause consistently with the views expressed in this and said former opinion.
Decree reversed.