Gage v. Parker

Decision Date17 February 1899
Citation178 Ill. 455,53 N.E. 317
PartiesGAGE v. PARKER et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Cook county; M. F. Tuley, Judge.

Suit by Amanda M. Parker and others against Henry H. Gage and others. Decree for plaintiffs, and defendant Gage appeals. Affirmed.

Gage & Deming, for appellant.

John W. Waughop, for appellees.

CARTER, C. J.

The appellee Amanda M. Parker filed her petition, under the burnt records act, to establish and confirm her title to the premises in controversy, being the north half of lot 13 in Elisha Bayley's subdivision of a certain [178 Ill. 456]20-acre tract of land in Cook county. Her title was not contested by any of the defendants except the appellant, Henry H. Gage. Gage answered the petition, and filed his cross bill or petition, denying the title of appellee, and alleging title in himself by virtue of seven certain tax deeds which had been issued to him on sales of the property for taxes and special assessments. Issues were made, and the court found and decreed that the title was vested in appellee, but that appellant had expended certain sums of money at sales of the property for taxes and special assessments, and in the payment of subsequent taxes and assessments, for which he should be reimbursed with interest, and that, upon payment of the same, the title should be confirmed in appellee as prayed. The money was paid to the clerk in compliance with the order, and a final decree entered confirming her title accordingly. By this appeal, Gage seeks a reversal of the decree.

It appears from the record that in 1874 the property was sold for the nonpayment of a certain special assessment, and that Gage purchased it at the sale. Prior to that time, appellee had sold and conveyed the property, and had taken back a deed of trust to secure a part of the purchase money, for the nonpayment of which her trustee afterwards, in 1875, sold the property under the power of sale, and her husband, George W. Parker, acting, as the court below found, as her agent, purchased, but took title in his own name. In 1876, a few days before the time of redemption under the tax sale expired, George W. Parker brought his bill to enjoin Gage from taking out a tax deed under his purchase, and obtained an order for a temporary injunction, upon condition that he should give the required bond. The ground set up in that bill was that the ordinance for the special assessment was void. Gage answered the bill. Nothing more seems to have been done in the case until 1881. During the interval, at a sale in 1877, which was adjourned from time to time, the property was six times sold for taxes and special assessments which had accrued from year to year; and appellant purchased it each time, and afterwards obtained six tax deeds by virtue of such purchases. In 1878 George W. Parker and the appellee conveyed the property to one Martin, and in 1887 Martin conveyed it to the appellee. In January, 1881, after he had parted with all title to the property, said George W. Parker filed his amended and supplemental bill in the cause, setting up these several sales for taxes since the original bill was filed, and alleging the payment or tender of sufficient redemption money, and that the said tax deeds were void, and praying that they be set aside. Issues were made, the cause heard, and a decree entered granting the prayer of the original and supplemental bills upon the payment by the complainant to or for the use of Gage a certain sum of money for taxes paid by him, with interest. Appellee was not a party to that suit. Gage brought the case by appeal to this court, and the decree was reversed, and the cause remanded. Gage v. Parker, 103 Ill. 528. The case was redocketed in the circuit court in 1883, and afterwards, in January, 1884, the complainant therein, George W. Parker, amended the bill, but no further proceedings were taken until 1896, when Gage filed his demurrer to the amended bill. The court sustained the demurrer, and dismissed the bill, and a few months thereafter the appellee filed this petition under the burnt records act, as before stated, the legal title having been reconveyed to her in 1887. During the year 1887, however, she conveyed the property to one Pearce, who gave back to her a declaration of trust showing that she was the beneficial owner, and, before this petition was filed, Pearce reconveyed to her. After answering the petition, in which he set up his claim of title under his tax deeds, Gage filed his cross bill or petition, in which he set up the various proceedings in the other case, including the judgment of this court reversing the decree of the court below, and remanding the cause, and the decree dismissing, on demurrer, the bill and supplemental bill of George W. Parker as amended, as a bar to any relief by appellee on her petition, alleging that the matters sought to be litigated were res judicata, and that the petitioner was estopped from questioning the validity of said tax deeds or his title under them.

The record shows that when the former case was disposed of, in 1896, by the dismissal of the bill by the court, Gage procured a tax deed upon his purchase at the tax sale of 1874, and that he claimed title in this case, not only under this tax deed, but also under the other six tax deeds issued to him in pursuance of his purchases at the tax sales of 1877. The court, on the hearing, required him to elect under which of said tax titles he claimed title to the property. This he refused to do, and, upon the evidence, the court found and decreed that the petitioner was the owner of the property at the time of the destruction of the records by fire, and was still the owner, and was entitled to have her title confirmed and established; that appellant had no title to the property, but was entitled to have repaid to him the moneys which he had paid out for taxes, with interest, which, it appeared, was $2,023.15. It appears from the record that appellee became the owner of the property in 1867, and continued to be the real owner (though at times the legal title was vested in others) until this suit was brought, except for the period from 1872 to 1875, when one Dore, her vendee, owned it; but, being unable to pay the purchase money, she became the equitable owner in the latter year, by virtue of a trustee's deed under the execution of a power of sale made to her husband at a sale for her benefit. It appeared also that she had and retained possession of the property by tenants in actual occupation thereof, and the decree finds also that appellee was at the time of the filing of her petition, and had been for more than seven successive years prior thereto, in the actual possession of the property, by actual residence thereon by and through her tenants, having at the same time a connected title, in law or equity, deducible of record from the United States. Whether or not his finding was justified under the evidence, whereby appellant's tax titles would be cut off by virtue of section 4 of the statute of limitations, we do not consider it necessary to determine; but, after a careful examination of the record and briefs and arguments of counsel, we have reached the conclusion that the decree should be affirmed on other grounds.

Counsel on both sides have, in the main, confined their arguments to the principal question, which is the effect which the former case, its pendency and final result, should have upon the rights of the parties to this cause. Appellant contends that the tax sale of 1874 and the six tax deeds which he obtained under his purchases at the sales of 1877 were, in effect, adjudged valid in the former suit; that appellee took her title while that suit was pending; that she was a purchaser pendente lite, and is therefore concluded by the result of that litigation. This position is correct as to the original bill filed while George W. Parker held title to the property. That bill attacked the tax sale of 1874 on the ground that the assessment was void because of the insufficiency of the ordinance, and the final decision was against that contention. Appellant did not, however, take out his deed on that sale until 1896,-22 years after the sale. By section 225 of the revenue act, his certificate of purchase was void when he obtained the deed, unless he was prevented by injunction, order of the court, or refusal of the clerk to issue it from obtaining it.

Appellant contends that he was enjoined by the order of the court in 1876, in the suit commenced by George W. Parker, and that this order remained in force until the...

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12 cases
  • Village Mills Co. v. Houston Oil Co. of Texas
    • United States
    • Texas Court of Appeals
    • 30 Enero 1916
    ... ... E. Easterling, and Hightower, Orgain & Butler, all of Beaumont, for appellant. D. F. Singleton, of Kountz, J. F. Lanier, of Beaumont, Parker & Kennerly, of Houston, and H. O. Head, of Sherman, for appellees ...         CONLEY, C. J ...         This was an action of ... Hall, 66 Ark. 305, 50 S. W. 690, ... Page 792 ... 74 Am. St. Rep. 97; Gregory v. Clabrough's Executors, 129 Cal. 475, 62 Pac. 72; Gage v. Parker, 178 Ill. 455, 53 N. E. 317; Freeman on Judgments (1st Ed.) § 162 ...         The fact that the Texas Pine Land Association, ... ...
  • Cooper v. Utah Light & Ry. Co.
    • United States
    • Utah Supreme Court
    • 29 Abril 1909
    ... ... suit." ( Railroad v. Missouri, 152 U.S. 314; ... Hassal v. Wilcox, 130 U.S. 494; Dull v ... Blackman, 169 U.S. 248; Gage v. Parker [Ill.], ... 53 N.E. 317; Moreland v. Frick, 32 A. 634 [Pa.]; ... Bensimer v. Fell, 12 S.E. 1078; Garrard v ... Hull, 20 S.E. 357 ... ...
  • Schien v. City of Virden
    • United States
    • Illinois Supreme Court
    • 24 Marzo 1955
    ... ... is dissolved, if a permanent injunction is granted the temporary is not thereby dissolved but is merged with the permanent injunction, Gage v. Parker, 178 Ill. 455, 53 N.E. 317; if a permanent injunction is denied and the complaint dismissed, the temporary injunction is not thereby ... ...
  • Lowdermilk v. Butler
    • United States
    • North Carolina Supreme Court
    • 23 Noviembre 1921
    ... ... coextensive only with the facts upon which it is founded. 11 ... Cyc. 745, and notes; Gage v. Parker, 178 Ill. 455, ... 53 N.E. 317; Larson v. Bank, 66 Neb. 595, 92 N.W ... 729. It has been well and wisely said that precedents are to ... ...
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