Gage v. Caraher

• Decision Date: 16 June 1888
• Citation: 125 Ill. 447,17 N.E. 777
• Parties: GAGE et al. v. CARAHER.
• Court: Illinois Supreme Court

125 Ill. 447

17 N.E. 777

GAGE et al.

v.CARAHER.

Supreme Court of Illinois.

June 16, 1888.

Appeal from superior court, Cook county; H. M. SHEPARD, Judge.

This was a suit in equity upon bill filed by Patrick Caraher against Portia Gage, Asahel Gage, Henry H. Gage, and others, under the burnt records act, to remove tax claims as clouds upon his title. There was a decree in favor of petitioner, and defendants appeal.

Augustus N. Gage, for appellants.

James E. Munroe and Ira J. Geer, for appellee.

SHOPE, J.

It is contended that this proceeding is not, properly considered, under the act known as the ‘Burnt Record Act.’ This is a misapprehension. This case is essentially different from Gage v. McLaughlin, 101 Ill. 155. It was said of that case: ‘This bill, while ostensibly filed under the act, is in reality one filed to remove the tax deeds of Gage as a cloud on petitioner's title.’ That the effect of the proceeding may be to remove a cloud from petitioner's title cannot be regarded as a test of whether the proceeding is properly under the act. That will in all cases depend upon the case made by the petition and proofs thereunder. It is averred and shown that the records of Cook county were destroyed by fire, October 9, 1871; that at that time petitioner was the owner of the lots in question; that he had a connected chain of title from the government, evidenced by certain deeds of conveyance, 36 of which, necessary to the completion of his chain of title, were lost; that such deeds had been recorded, and the record thereof destroyed in said fire; that appellants and others were claiming title in fee to said lots, and had caused deeds thereto to be placed on record, etc. The petition was duly verified, and contained all that was necessary to entitle the petitioner to relief under the provision of that act, and was sustained by proof. It is no objection to proceeding under the statute, where the facts alleged and proved bring the case within its provisions, that there are adverse claimants. Whatever may be the power of the court of chancery, where there are controverted titles, to restore by its decree the evidences of title in the respective parties as they were before the destruction of the record, and then, in its discretion, remit the parties to a court of law to there try their titles, it is manifest no such course was contemplated by the statute or necessary in cases under it. By the act (section 10) the court is given power to inquire into the condition of any title to or interest in the land in question, and to make all such orders, judgments, or decrees as may be necessary to determine and establish said title or interest, either of a legal or equitable character, and (section 15) in such decrees, whether pro confesso or otherwise, to determine and decree in whom the title is vested. The court is authorized and required to investigate the interest of all the parties in the premises in question, (Mulvey v. Gibbons, 87 Ill. 367;) and to decree in favor of the better title, (Robinson v. Ferguson, 78 Ill. 538;Smith v. Hutchinson, 108 Ill. 662;Smith v. Gage, 11 Biss. 217.) The decrees so entered are by the statute (section 16) made, as to the title so found, forever binding and conclusive. Ample provision is made by the eighteenth section of the act for presenting opposing or conflicting claims of title.

It is also objected that the petition is insufficient to warrant the court in finding the tax deeds void, for the reason that it does not aver the invalidity of such tax deed, as is required to be done in bills to remove tax deeds as clouds from titles, (Moore v. Wayman, 107 Ill. 195;Farwell v. Harding, 96 Ill. 32;Barnett v. Cline, 60 Ill. 205;) and proof thereof was not made by the petitioner. This position is untenable. All that is required in respect of adverse claimants or their titles is that such claimant shall be named in the petition and made defendant. Nothing more is required to give the court jurisdiction, under the statute, to investigate all claims of title to the premises, and by its decree establish and confirm the title in the person in whom it is found to be vested, and to make all such orders, judgments, and decrees as shall be necessary to that end. It was said in Smith v. Hutchinson, supra, that the petitioner was required to establish the validity of his own title only; and, ‘when a person is made defendant in a petition of this character, is devolves upon him to establish the title he may claim to the property.’ If appellants intended to rely on their title set up in their answers, they were required to show its validity. It is said, however, in effect, that this was done when they introduced in evidence their tax deeds, regularly executed by the proper officer; that, by virtue of the statute, such deeds are made prima facie evidence of the regularity of all the precedent proceedings necessary to their validity; and that this is so, notwithstanding the burnt record act (paragraph 23) expressly provides that no tax deed based upon any proceedings, the records of which have been destroyed, shall be received as prima facie evidence of the regularity of such proceedings, because the statute making the tax deed prima facie evidence of the regularity of the precedent step, etc., was in force at the time of the sale and making of the deeds, and formed part of the contract relating thereto, and that the application of the twenty-third paragraph of the burnt record act, passed subsequently to the making of the deed, would be in violation of section 10 of article 1 of the constitution of the United States, preserving the inviolability of contracts. The position of counsel is manifestly untenable. As we have seen, it devolves upon appellants to show that their tax titles, or some of them, were valid, before the court could decree in their favor thereon; and it was essential and indispensable to the validity of such titles that there should be a valid judgment, a valid precept, and the affidavit of notice required by law. We have repeatedly held that a tax deed made in pursuance of the statute in force when these several sales and deeds were made, is void unless it is supported by a valid judgment and precept. Nothing in the act (section 73, c. 89, Rev. St. 1845; Gross' St. 1869, p. 575) makes the tax deed prima facie evidence of a valid judgment, precept, or affidavit of notice. These were required to be shown to establish the validity of the tax title. Pitkin v. Yaw, 13 Ill. 251;Baily v. Doolittle, 24 Ill. 577;Gage v. Lightburn, 93 Ill. 248;Eagan v. Connelly, 107 Ill. 458.

But, if this was not so, counsel is in error in supposing that the section of the burnt record act referred to, would have the effect to impair any right of contract. At most, the statute...