Additional Opinion Upon Petition for Rehearing
Plaintiffs now concede that they are unable to cite any Illinois case that holds that a lease like the one. in question constitutes a cloud on title which a court of equity will remove, but they still contend that other jurisdictions have uniformly so held. As we stated in our opinion, we deem it unnecessary to consider. d.ecisions of the other States, in view of the frequent decisions of our Supreme Court as to what constitutes a cloud on title. It is somewhat significant, however, that the able counsel for plaintiffs cite only four cases in support of their contention, Wilmore Coal Co. v. Brown, 147 Fed. (Penn.) 931; Riedman v. Barkwill (Cal.), 34 P. (2d) 744; Andrews v. Russell, 85 Cal. App. 149, 259 Pac. 113; Anderson v. Guenther (Ore.), 25 P. (2d) 146. Wilmore Coal Co. v. Brown involved a bill to cancel certain coal leases, executed in 1878 and 1880, as clouds upon the title. As the court states in its opinion: “According to the law of Pennsylvania, by which the subject is necessarily governed, the so-called leases to the defendant Brown constitute a sale and conveyance of the coal and minerals in place.” (Citing cases.) The section where the leases were located was entirely undeveloped at the time the leases were made, except for farming. There was no railroad into the section and the leases provided that unless one was so built within five years the leases should be null and void. No such railroad was ever built, and the lessee for 24 years took no steps to mine or develop the land. The court held that under the facts of the case the leases were invalid and constituted a cloud upon the title. Andrews v. Russell involved an oil lease. In our original opinion we referred to the peculiar nature and purposes of oil and gas leases. In Riedman v. Barkwill an oil and gas lease was involved, and the decision is based upon Andrews v. Russell. Anderson v. Guenther presents a petition for a rehearing, the original opinion appearing in 22 Pac. (2d) 339. There the Supreme Court of Oregon held that plaintiff’s equity suit to remove a cloud from title was not maintainable because she had an adequate remedy at law. A judgment had been rendered against her, in an action at law, execution levied upon certain real property owned by her, and upon the execution sale Guenther, the plaintiff in that proceeding, purchased the property. More than a year after the entry of the judgment plaintiff entered a motion to vacate the judgment. While that motion was pending* she filed her suit to remove a cloud on title claiming that the service of summons by publication in the action at law was fatally defective. The Supreme Court held that the action of the trial court in dismissing her equity suit was justified upon the ground that plaintiff had an adequate remedy at law; that if her contentions in respect to the service by publication were true,' the judgment was void and it was the duty of the circuit court to vacate it. Plaintiff also contended, in her equity suit, that in the law action the trial court lacked authority to set aside the sheriff’s deed and that therefore the maintenance of the suit to remove cloud was necessary, but it was held that there was no merit in this contention and the court observed that orders vacating, the judgment, the sale, and the confirmation of the sale, would appear in the same record as the one out of which the sheriff’s deed emanated. None of the foregoing cases supports plaintiffs’ contention.
In their petition for rehearing plaintiffs urge that if we adhere to our holding that the lease does not constitute a cloud on title that equity can remove, we should then treat the complaint as one to establish and confirm title to real estate, and that we should affirm the portions of the decree which hold that plaintiffs are the absolute owners of said real estate and appurtenances, free and clear of all claim or interest of the defendants and rightfully in possession as against any claim or interest of the defendants and that the defendants and all persons claiming under them are forever enjoined from asserting any claim to the real estate and appurtenances as against plaintiffs ’ title and right of possession. This belated position of plaintiffs tends to support the contention of defendants, strenuously urged, that the present proceeding is an attempt, in the guise of a complaint to remove a cloud from title, where none exists, to avoid direct action in which the rights of the parties, arising under the lease, might be determined. In "their brief all of the points urged in support of the decree are based upon the .theory that the complaint is one to remove certain clouds from title. To quote from their brief: “Plaintiffs did not ask the aid of the Court, either in terminating the leasehold or in declaring that what plaintiffs had done to terminate it had been effective. The leasehold éstate which the lease created had been terminated before the bringing of suit; plaintiffs were back in possession; all improvements and appurtenances, if any, had become the absolute property of the plaintiffs without any right of defendants to compensation therefor . . . . "What then was the relief sought in these proceedings ? Plaintiffs alleged their ownership and possession; the making and recording of the indenture of lease; the creation by the lessees of a variegated assortment of recorded claims subsidiary to the leasehold; the termination of the leasehold, and, ipso facto, of the claims; the continued appearance on the record of both lease and instruments evidencing the claims; and they thereupon prayed removal of these recorded instruments from the record as clouds on their title. Did such a complaint present a proper case for equitable cognizance?” From the allegations of the complaint it is clear that the sole ground urged for equitable relief is the alleged cloud on title. In this connection it must be noted that the second class of instruments that plaintiffs prayed be set aside as clouds upon the title, etc., are claims against the interest of the lessee and do not affect, in any way, the interest of lessors, and if the lease is not a cloud upon the title the instruments belonging to the second class are not clouds. Plaintiffs are obliged to justify certain provisions of the decree “as incidental to the main relief asked.”
Plaintiffs argue that as they are now in possession of the premises and, therefore, unable to bring forcible entry and detainer proceedings, and as the lease is of record, a prospective purchaser would be obliged to investigate the facts as to whether or not it is still in force and effect, and that as long as the lease remains upon the records the owner of the property would have difficulty in disposing of it. In the instant case plaintiffs did not see fit to bring forcible entry and detainer proceedings, but they allege that, in accordance with the terms of the lease, they declared the lease and the term demised ended, “re-entered the said demised premises . . . and expelled, removed and put out from the said premises . . . every other person occupant in or upon the same, including each and all of the defendants herein, and on said date repossessed the same and now possess and enjoy the same." Plaintiffs are hardly in a position to complain of the consequences that followed their own choice of procedure. But we do not think that the situation is as serious as plaintiffs state. They allege that they are in possession of the premises, and possession of land is notice to all persons dealing with it of whatever rights the one in possession claims. Plaintiffs have the right to record copies of the notices of termination and the affidavit of service, which would be further notice to the world of plaintiffs ’ claims as to the lease. The evidence shows that they put up a sign on the property “so people would know who the owner was," appointed an agent to have charge of the building to be erected, and that they have signed leases for apartments in said building.
The petition for rehearing is denied.
Rehearing denied.
Sullivan and Friend, JJ., concur.