Bell v. Johnson

• Citation: 111 Ill. 374,1884 WL 9969
• Parties: JOSEPH T. BELLv.JAMES H. JOHNSON.
• Decision Date: 17 November 1884
• Court: Supreme Court of Illinois

111 Ill. 374

1884 WL 9969 (Ill.)

JOSEPH T. BELL

v.JAMES H. JOHNSON.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Carroll county; the Hon. JOHN V. EUSTACE, Judge, presiding.

Messrs. SMITH & LEE, and Mr. M. Y. JOHNSON, for the appellant:

A party will not be permitted to question a transaction for fraud which in no way affects his interest.

Equity will consider the money advanced to purchase the outstanding title, as an advance for the benefit of the ward, and not for the conservator's own benefit, giving him usually a lien on the property for his reimbursement, being analogous to the case of trustee and cestui que trust. Thorp v. McCullum, 1 Gilm. 614; Pensoneau v. Blakely, 14 Ill. 15; Robbins v. Butler, 24 Id. 387; King v. Cushman, 41 Id. 31; Taylor v. Taylor, 4 Gilm. 303.

Under the law of 1853 the sheriff was the officer required to execute the tax deed,--under the consolidated act of 1872 the county clerk was made the officer to execute the tax deed. (2 Gross' Stat. p. 367, sec. 684.) Section 688, on the same page, made the previous six sections of that act applicable to all sales of real estate for taxes made before that act took effect; and section 689, on the same page, made tax deeds prima facie evidence of seven distinct things,-- of every prerequisite, in fact, except the judgment and precept, the notice required to be given by the purchaser, or assignee of the purchaser, to the person in possession or occupancy of the land purchased, and to the person in whose name the land was taxed, and the affidavit required to be made of compliance with the statute as to notices.

Messrs. HUNTER & HOFFMAN, for the appellee:

A tax deed is void unless founded on a valid judgment and precept. Eagan v. Connelly, 107 Ill. 458; Gage v. Lightburn, 93 Id. 248; Bailey v. Doolittle, 24 Id. 577; Dukes v. Rowley, Id. 210; Fitch v. Pinckard, 4 Scam. 69.

A tax title is a purely technical, as contradistinguished from a meritorious, title, and depends for its validity upon a strict compliance with the statute. Skinner v. Fulton, 39 Ill. 484; Altes v. Hinkler, 36 Id. 265; Charles v. Waugh, 35 Id. 315; Clark v. Lewis, Id. 417.

Appellant shows no excuse for his delay in attempting to get possession, which alone ought to defeat the tax title. Oakley v. Hurlbut, 100 Ill. 204.

Where a party has once conveyed all the interest he has in land, a subsequent quitclaim deed from him will pass no title. Garrick v. Chamberlain, 97 Ill. 620.

An ordinary quitclaim deed conveys whatever interest the grantor has at the time of making the same; and if he has no interest at the time, then it can not operate, by way of estoppel, to prevent him, or those claiming under him, from asserting a subsequently acquired title. Frink v. Darst, 14 Ill. 304.

The complainant in the cross-bill is not in possession, hence it will not lie to clear or test title. Oakley v. Hurlbut, 100 Ill. 204.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill filed in the Carroll circuit court, to have a tax deed set aside and declared void, as a cloud on complainant's title to a forty-acre tract of land in that county. The bill alleges that the deed is void for the want of a valid judgment and precept to support the sale for taxes. Defendant answered the bill, and exceptions were filed to it, and sustained as to all but the tax deed. On leave of the court, defendant filed a cross-bill, alleging that the land was regularly sold by the collector on the 21st of May, 1871, for the taxes for the year 1870; that Francis Bell, the father of defendant, became the purchaser; that he gave the requisite notice to entitle him to a deed; that he sold and assigned the certificate of purchase to defendant; that the proper affidavit of notice was made, filed and delivered to the county clerk, in pursuance to the requirements of the law; that the county clerk made and delivered to him a tax deed; that there was rendered a valid judgment against the land, and a like precept was duly issued, under which the land was sold, and a paramount title thereby vested in him. The cross-bill further alleges, that about the 28th day of August, 1873, Robert Croom, who was the patentee, and living on the land, executed and delivered to an attorney at law, by the name of Orrin Woodruff, a mortgage on the forty acres in controversy, to secure a note given by him to Woodruff for $500, as an attorney's fee, for which Woodruff agreed to file a bill and conduct the suit for the purpose of setting aside and annulling defendant's tax deed; that Woodruff did file such a bill, which Croom voluntarily dismissed after being on the docket for several terms; that Croom was weak-minded, and was overreached by Woodruff in obtaining the note and mortgage; that Woodruff did not render the services under the contract, as agreed, and fearing to attempt to enforce such an extortionate fee, he made a colorable assignment of the note and mortgage to one Albert J. Jackson, in whose name foreclosure proceedings were commenced, and a decree of foreclosure was obtained after a partial defence, and on Croom's answer, which it is alleged was obtained by fraud, covin and misrepresentation by Woodruff, Jackson, and others; that on the 22d day of March, 1880, Croom and wife commenced a suit in chancery to impeach and set aside the decree of foreclosure, and the deeds made thereunder, charging that the deeds had been fraudulently obtained; that Woodruff was at all times the owner in fact of the mortgage, and was the real party in interest in all these proceedings; that all subsequent purchasers had notice of Woodruff's fraudulent acts, instituted for the purpose of defrauding Croom out of the land, and they had joined and conspired with him for that purpose; that during the pendency of that suit Johnson had been appointed conservator of Croom, and whilst he was conservator he had purchased the title of Early for $700, and had the conveyance made to himself, in his own name, and claims to be the absolute owner of the land, and he claims defendant's tax deed should be set aside as a cloud on his title; that having procured a conveyance to himself, he had dismissed the suit brought by Croom. It is also alleged, that on the 31st day of October, 1879, and before Croom became insane, and before complainant was appointed conservator for Croom, the latter conveyed the land to defendant by a quitclaim deed, in cancellation of a considerable debt Croom owed defendant's father. To this cross-bill there was filed a demurrer, which was sustained by the court. A trial was had, and the relief asked was granted, and complainant was decreed to pay defendant $33.50 for the money advanced in purchasing the tax title, and for interest thereon. From that decree defendant appeals, and assigns various errors for a...