Mr. JUSTICE WILSON delivered the opinion of the court:
Plaintiff, as the successor in interest to the original fee simple owners and the beneficiary of a trust, filed a two-count complaint in ejectment and declaratory judgment, respectively, seeking to recover seven parcels of property within a five-acre school site which defendants were abandoning for public school use. The trial court granted summary judgment in favor of defendants on both counts. On appeal, plaintiff contends that the trial court erred because (1) the property in issue should revert to him since defendants acquired, pursuant to the 1952 condemnation proceeding, only an easement or fee simple determinable title for school purposes and (2) the 1952 judgment order was void for want of jurisdiction over the original owners and trustee in the eminent domain proceeding. (Ill. Rev. Stat. 1951, ch. 110, par. 138.) We affirm. The necessary facts are contained within our discussion of plaintiff's individual contentions on appeal.
We first address plaintiff's contention with respect to the quantum of estate acquired by defendants in the 1952 condemnation proceeding. Plaintiff's argument is twofold: (1) At the time of the condemnation proceeding, the applicable case law and relevant statute did not even allow school trustees to acquire fee simple title in an eminent domain proceeding; and (a) although a relatively recent case would allow trustees to take fee simple title if they so desire, the trustees in the instant case never manifested a desire to do so. Defendants argue that the law as it existed in 1952 did bequeath the power upon school trustees to acquire fee simple title and that defendants here manifested the requisite intention and acquired a fee simple, as evidenced by the language in the petition to condemn and the resulting jury verdict and judgment order.
The threshold question before us is whether school trustees were empowered in 1952 to take property for school purposes in fee simple absolute in an eminent domain proceeding. Correct disposition of this question requires our review of the applicable case law, which we will discuss in chronological order.
In Superior Oil Co. v. Harsh (N.D. Ill. 1941), 39 F.Supp. 467, affirmed (7th Cir.1942), 126 F.2d 572, plaintiff, the lessor of the record title holder, sued to enjoin defendants, school trustees and four persons interested in an oil and gas lease executed by the trustees, from operating an oil well upon a schoolhouse site. The owners of the record title paid all taxes, and there was no evidence of a deed passing from them to the trustees. The issue in the case was whether the trustees were vested with a fee simple title such that they would have title to the oil and gas, or whether they acquired an easement or fee simple determinable which would have limited their use of the property to school purposes only.
The court first sought to determine the authority defendants derived from the controlling 1881 statute. The statute provided that school trustees could acquire real estate for the use of the township for school purposes. It further provided that they could acquire property for the purpose of a schoolhouse site either with or without the owner's consent.
Although no formal condemnation proceedings had been instituted, the court found that the school authorities had acted informally pursuant to their powers under the statute and further that defendants had not proven that title was acquired by adverse possession.
The court held:
However, in Miner v. Yantis (1951), 410 Ill. 401, 405, 102 N.E.2d 524, 526, the court stated that trustees "may, by proper grant, take title in fee simple absolute to real estate to be used for school purposes." In Miner, plaintiffs sought to set aside a deed to a school site granted to defendant on the grounds that they still held title to the land in question. Defendants maintained that the school trustees had taken title in fee simple by adverse possession. The court held that the elements of adverse possession had not been met although it would have been possible for school trustees to have acquired a fee by that method.
Furthermore, in Miner, as in Superior Oil Co., there was no showing in the record that formal condemnation proceedings had been instituted. However, it was presumed that defendants acted informally pursuant to their authority under the eminent domain statute in force and therefore their rights were subservient to that of the record owner.
In the year following the Miner decision, the Federal District Court for the Eastern District of Illinois decided Kelly v. Bowman (E.D. Ill. 1952), 104 F.Supp. 973, affirmed (7th Cir.1953), 202 F.2d 275. In Kelly, the school trustees had filed a condemnation action in 1906 to take certain lands for a school site. In 1952, the school trustees abandoned the use of the site for school purposes and sold their interest to one of the defendants.
The controlling statute which was similar in substance to the ones in Superior Oil Co. and Miner provided inter alia:
The court held:
The court felt compelled to hold as it did by virtue of the earlier decisions in Superior Oil Co. and Miner. The reasoning of those two cases dictated the finding that the trustees held only an easement and when they abandoned the use of the property as a school site, the property reverted to plaintiffs, holders of the record title.
In 1955, our supreme court decided City of Waukegan v. Stanczak
The court stated:
The court then looked to the provisions of the city charter and said:
Finally, in Trustees of Schools v. Schroeder (1971), 2 Ill.App.3d 1009, 278 N.E.2d 431, the appellate court was presented with the issue of whether the 1959 School Code granted the power to take a fee simple if a school district so desires. The issue arose under a malpractice setting
• 1-3 The following principles may be gleaned from the foregoing cases: When the elements of adverse possession are not satisfied and when no formal condemnation proceeding has been instituted, it is presumed that school trustees are acting under the authority given them by the relevant eminent domain statute in force. (Miner v. Yantis (1951), 410 Ill. 401, 102 N.E.2d 524; Superior Oil Co. v. Harsh (E.D. Ill. 1941), 39 F.Supp. 467, affirmed (7th Cir.1942), 126 F.2d 572.) In the absence of evidence to the contrary, it is presumed that trustees take only that quantum of estate necessary to accomplish their purpose, that is, an easement or fee simple determinable which reverts back to the original owner or his successor upon cessation of use for school purposes. (Kelly v. Bowman (E.D. Ill. 1952), 104 F.Supp. 973, affirmed (7th Cir.1953), 202 F.2d 275 (formal condemnation proceeding); Miner v. Yantis (1951), 410 Ill. 401, 102 N.E.2d 524; Superior Oil Co. v. Harsh (E.D. Ill. 1941), 39 F.Supp. 467, affirmed (7th Cir.1942), 126 F.2d 572.) However, when an express grant of authority has been given, such as a special charter or where the judgment order explicitly vests a fee simple title, trustees are empowered to take real estate in fee simple absolute to be used for school purposes. (City of Waukegan v. Stanczak (1955), 6 Ill.2d 594, 129 N.E.2d 751; Miner v. Yantis (1951), 410 Ill. 401, 102 N.E.2d 524 (dicta).) Finally, trustees are authorized under the School Code to take a fee simple absolute if they so desire. (Trustees of Schools v. Schroeder (1971), 2 Ill.App.3d 1009, 278 N.E.2d 431.) However, the precise question with which we are presented in the case at bar still remains unanswered: What quantum of estate do school trustees acquire pursuant to their statutory authority in a formal condemnation proceeding when neither the petition to condemn nor the jury verdict and judgment order explicitly states that they desire or have been granted a fee simple absolute?
In order to resolve this question, we must first look to the statute in effect at the time of the 1952 condemnation proceeding. Section 7-17 of the School Code (Ill. Rev. Stat. 1951, ch. 122, par. 7-17) provided in relevant part:
• 4 As this statute was identical in relevant part to the one in force in Schroeder, we hold that it empowered defendants to take a fee simple absolute if they so desired. Furthermore as held in City of Waukegan and as reasoned in Miner, fee simple is not an excessive quantum of estate if the judgment order so provides.
In order to discern the intention of defendants, it is necessary to examine the language used in the petition to condemn. Concomitantly, we will scrutinize the jury verdict and judgment order in order to determine whether a fee simple was granted to the trustees.
The petition to condemn provided inter alia:
In addition to incorporating the jury verdict, the judgment order provided inter alia:
Plaintiff and defendants have emphasized different language to support their respective contentions that the trustees took a fee simple determinable or a fee simple absolute in 1952. Specifically, defendants have pointed to the use of the words "acquire, property, lots, pieces or parcels of property, of real estate, taking," as indicating a fee simple. Plaintiff has argued that the repeated use of the phrase "for school purposes" in describing the property and title taken illustrates that the trustees intended to acquire only a fee simple determinable or easement. Plaintiff also urges that the employment of the term "damaging" in the judgment order indicates a fee simple determinable, for there can only be a damaging if, after the taking for school use, there is something left. We are not persuaded by either plaintiff's or defendants' arguments for two reasons. First, we presume that the petition, jury verdict and judgment orders were the then standard form orders. Further, we find that the use of the phrase "for school purposes" merely describes the public use justifying the trustees' exercise of their power of eminent domain. Valentine v. Lamont (1953), 25 N.J.Super. 342, 96 A.2d 417.
Defendants raise two additional arguments which we also find to be without merit. They argue that the fact that plaintiff or his predecessors did not pay any taxes on the property after 1952 indicates that a fee was taken. As plaintiff points out, the statutes in force at the time exempted property from taxation if it was being used for school purposes regardless
• 5 We base our holding that defendants acquired a fee simple absolute on the fact that the 1951 School Code empowered them to do so, and they were explicitly acting pursuant to that authority. We are guided by the holding of Trustees of Schools v. Schroeder (1971), 2 Ill.App.3d 1009, 278 N.E.2d 431, which involved a statute identically worded in relevant part to the one in the case at bar. We also believe that this holding is the logical extension of the reasoning of the earlier cases that trustees may acquire the largest quantum of estate that the statute in effect at the time allows them to take.
Plaintiff has raised a second separate theory as a basis for awarding the property to him in fee simple. In count II of his amended complaint, plaintiff sought a declaration that the judgment order in the original condemnation proceeding was void for want of jurisdiction over Chicago Trust Company, a necessary party. He also alleged that the affidavit for publication as to the remaining parties was so defective as to render it void on its face, thereby nullifying the resulting judgment order.
• 6 Plaintiff's attempts to impeach this 26-year-old judgment constitute a collateral attack. (Ill. Rev. Stat. 1975, ch. 110, par. 72; Large v. Lyons (1975), 31 Ill.App.3d 1076, 335 N.E.2d 524.) It is well established that a judgment order entered by a court which lacked jurisdiction over the parties or subject matter is void and may be attacked by any person affected by that order at any time. (City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill.2d 108, 357 N.E.2d 1154; Safeway Insurance Co. v. Harvey (1976), 36 Ill.App.3d 388, 343 N.E.2d 679.) In the case of a collateral attack on a judgment, all presumptions are in favor of the validity of the judgment attacked, and want of jurisdiction must appear on the face of the record. In re Estate of Leichtenberg (1955), 5 Ill.App.2d 336, 125 N.E. 277, affirmed (1956), 7 Ill.2d 545, 131 N.E.2d 487; Anderson v. Anderson (1955), 4 Ill.App.2d 330, 124 N.E.2d 66.
Our task is thus to examine the record before us in order to determine the merits of plaintiff's argument that the court in the 1952 condemnation proceeding lacked jurisdiction over Chicago Trust Company.
The affidavit of nonresidence, a prerequisite to jurisdiction by publication, names Riverside Plaza Corporation and other defendants, but does not include either Chicago Trust Company or LaSalle National Bank.
The judgment order provides in pertinent part:
The above order was entered on December 22, 1952. On the same day the trial judge entered an order dismissing LaSalle National Bank as a party-defendant.
In this appeal, plaintiff argues, and we agree, that jurisdiction by publication was never had with respect to Chicago Trust Company. Although jurisdiction by publication was presumably effected over LaSalle National Bank (see judgment order) LaSalle was dismissed as a party to the suit. However, this does not preclude the possibility that personal service was made to Chicago Trust Company. (See Reedy v.
Similarly, plaintiff's contention that the affidavit for publication is so defective as to render the judgment void must also fail.
Section 14 of the Civil Practice Act (Ill. Rev. Stat. 1951, ch. 110, par. 138) provided in relevant part:
The affidavit filed in the instant case reads as follows:
• 7 "The provision for `due inquiry' is not intended as a pro forma or useless phrase, requiring only perfunctory performance, but, on the contrary, requires an honest and well-directed effort to ascertain the whereabouts of a defendant by an inquiry as full as circumstances can permit. (Graham v. O'Connor, 350 Ill. 36, 40-41, 182 N.E. 764, 766; Romain v. Lambros, 12 Ill.App.2d 64, 68, 138 N.E.2d 704, 706.)" City of Chicago v. Leakas (1972), 6 Ill.App.3d 20, 284 N.E.2d 449, 455.
• 8 We believe that under the present circumstances, the limitation of the search within the State of Illinois was sufficient. We further find that in the crucial respects, substantial compliance with the statute was accomplished.
Since we find that defendants were empowered to and did acquire a fee simple absolute in the 1952 condemnation proceeding and further that the judgment order was valid and cannot now be collaterally attacked, we hold that the trial court properly ordered that summary judgment be granted in favor of defendants as to both counts of plaintiff's amended complaint. Accordingly, we affirm.
SULLIVAN, P.J., and MEJDA, J., concur.