Reed v. Tyler

• Decision Date: 30 September 1870
• Citation: 56 Ill. 288,1870 WL 6519
• Parties: WILLIAM KELSEY REED et al.v.JAMES E. TYLER et al., Trustees, etc.
• Court: Illinois Supreme Court

56 Ill. 288

1870 WL 6519 (Ill.)

WILLIAM KELSEY REED et al.

v.JAMES E. TYLER et al., Trustees, etc.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Superior Court of Chicago. This was a suit in chancery, instituted by James E. Tyler, George Field and John F. Eberhart, trustees of the Norwood Land and Building Association, against George W. Reed, William Kelsey Reed and the Illinois Land and Loan Company, a corporation, to set aside, as invalid and a cloud upon the complainants' title, a sale for taxes, and a deed thereunder, of a certain tract of land, described as follows: “Except the railroad, south of McHenry road, fractional north-west quarter of section six, township forty north, range thirteen east of the third principal meridian, situated in Cook county, State of Illinois.”

It appears, the complainants were in possession of the land, claiming to own the same, and permitted it to be sold, in August, 1866, for the unpaid State and county taxes due for the year 1865. George W. Reed became the purchaser at the tax sale, and having assigned the certificate of purchase to William Kelsey Reed, a tax deed was issued to the latter, who subsequently conveyed to the Illinois Land and Loan Company. Upon the final hearing, the court below decreed that the tax sale, the deed executed in pursuance thereof to William Kelsey Reed, and the deed from him to the Illinois Land and Loan Company, being a cloud upon the title of the complainants, be declared null and void.

The defendants thereupon took this appeal. The specific grounds of error assigned are set forth in the opinion of the court.

Mr. GEORGE SCOVILLE, for the appellants.

Mr. GWYNN GARNETT, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in equity, to set aside, as invalid and a cloud upon the complainants' title, a sale for taxes, and a deed thereunder, of certain real estate in Cook county, owned by the complainants and of which they were in possession, on the ground of certain irregularities in the proceedings whereby the tax deed was acquired, the bill alleging that the Illinois Land and Loan Company claimed the land in fee under the tax deed.

The first error assigned is, that the return of service was insufficient to authorize the entry of the default of the Illinois Land and Loan Company. The sheriff's return on the summons is: “Served this writ by reading to the within named William Kelsey Reed and to George W. Reed, and to William Kelsey Reed, cashier of the Illinois Land and Loan Company, the president not found in my county, he being a non-resident, and delivered to each of them a copy thereof, March 25, 1870.” The statutory requirement in cases of this kind is, that “process shall be served upon the president of such company, if he reside in the county in which suit is brought, and if such president be absent from the county, or does not reside in the county, then the summons shall be served by the proper officer, by leaving a copy thereof with any clerk, cashier,” etc. Gross' Stat. 506.

The objection taken is, that the return does not show that the president did not reside in the county. The whole return is to be taken together. The sheriff of Cook county, to whom the writ was directed, had just mentioned “my county” in his return, and when he undertakes to tell why the president was not found in his county, by stating that he was a non-resident, he could mean nothing else than that he was a non-resident of Cook county. That such was the reasonable and proper construction of the return we have no doubt. Words may be implied in an officer's return, as well as in other written evidence, where such implication is justified by what is expressed. Farnsworth v. Strasler, 12 Ill. 482.

All the defendants were properly in court, and the bill was regularly taken for confessed against them.

The next error assigned is, that a court of equity should not take jurisdiction of a case of this kind, but should leave the party to his remedy at law.

The appellants' counsel, in support of his position, insists that it is the province of a court of law, and not of equity, to try the validity of a tax title; that the complainants had an immediate remedy at law; that they might have brought an action of ejectment to test their title at once against the Illinois Land and Loan Company, although the latter were not in possession and reference is made to the decisions of different courts, under statutes similar to our own, that ejectment will lie against a party out of possession, where he claims title to unoccupied land. Admitting that to be the construction of our statute in the case of unoccupied lands, we do not understand that ordinarily a party in the actual occupation of land can maintain ejectment against...