Ames v. Sankey

• Decision Date: 16 May 1889
• Citation: 21 N.E. 579,128 Ill. 523
• Parties: AMES et al. v. SANKEY et al.
• Court: Illinois Supreme Court

128 Ill. 523

21 N.E. 579

AMES et al.

v.SANKEY et al.¹

Supreme Court of Illinois.

May 16, 1889.

Error to appellate court, First district.

Bill by Jacob Sankey, John Sankey, James W. Sankey, Mary Ann Wolf, Caroline H. Sankey, Margaret C. Street, Annie S. Eells, Mary F. Van Matre, Lydia A. Wickwire, Mary C. Fichthorne, Susan P. Reighard, and Sevilla Fritz, heirs at law of Samuel Sankey, deceased, against S. C. Ames, William C. Seipp, Michael W. Ryan, A. Gage, H. L. Glos, D. J. Hubbard, J. N. Young, H. Tift, and A. Macartney, in the superior court of Cook county. The court dismissed the bill for want of equity. That decree was reversed by the appellate court, and defendants bring error.

H. S. Mecartney, for plaintiffs in error.

F. W. S. Brawley, for defendants in error.

MAGRUDER, J.

This is a bill to remove certain tax certificates as clouds upon the title to certain lots in Chicago. The taxsales were made in October, 1884. The bill was filed in July, 1886, several months before the expiration of the period of redemption. The only question in the case is whether the bill will lie, and we think that this question must be answered in the affirmative. First. The tax certificates of purchase issued by the county clerk were void because the clerk did not make and enter upon the record the certificate required by section 194 of the revenue act, (2 Starr & C. St. 2093.) That section provides that on the day advertised for sale the county clerk, assisted by the collector, shall carefully examine the list upon which judgment has been rendered, etc., and shall make a certificate to be entered on said record, following the order of court, that such record is correct, and that judgment was rendered upon the property therein mentioned for the taxes, interest, and costs due thereon. The section also provides that the certificate so to be made and entered by the clerk shall be attested by him under seal of the court, and shall be the process on which all real property, or any interest therein, shall be sold for taxes, special assessments, interest, and costs due thereon. Such certificate is required to be substantially in the form set out in the section. Where the law expressly directs that process shall be in a specified form, and issued in a particular manner, such a provision is mandatory. Sidwell v. Schumacher, 99 Ill. 426. This rule applies to that which stands in the place of process and performs its office. Eagan v. Connelly, 107 Ill. 458. In this case there was no attested certificate, and therefore no process under which the officer making the sale was authorized to act. Hence the sale and the certificates issued to the purchaser were void. Bell v. Johnson, 111 Ill. 374; Neff v. Smyth, Id. 100. Second. The tax certificates, having been issued upon a void sale for taxes, will be removed by a court of equity as clouds upon the title. It is alleged in the bill, and admitted by the demurrer, that all the lots in controversy are vacant and unoccupied except...