Bowers v. Glos
| Decision Date | 17 December 1931 |
| Docket Number | No. 20878.,20878. |
| Citation | 179 N.E. 80,346 Ill. 623 |
| Parties | BOWERS v. GLOS et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Cook County Court; Charles T. Allen, Judge.
Proceeding by Fannie E. Bowers against Albert H. Glos and the Elmhurst State Bank, as trustee. From a judgment for plaintiff, defendants bring error.
Affirmed.John R. O'Connor, Alben F. Bates, William M. Webster, Edgar H. Parnell, and F. C. Oien, all of Chicago, for plaintiffs in error.
A. M. Burroughs, of Chicago, for defendant in error.
This is a proceeding brought in the county court of Cook county by Fannie E. Bowers, heir at law and next of kin and administratrix of the estate of Cora A. Wilder, deceased, against Albert H. Glos and the Elmhurst State Bank, a corporation, as trustee, for the purpose of procuring an order directing the reconveyance of a tax title under the provisions of an Act approved June 14, 1909 (Laws 1909, p. 146), as amended in 1915 (Laws 1915, p. 577).
The proceeding was commenced by the filing of an affidavit by Fannie E. Bowers in the county court of Cook county on April 2, 1930, in which it was alleged that Cora A. Wilder, deceased, during her lifetime was the owner in fee simple of the premises described therein; that the petitioner, Fannie E. Bowers, was her sole heir and was duly appointed the administratrix of her estate. The petitioner further stated that the premises had been sold for taxes on November 2, 1925, November 18, 1925, and November 23, 1925, and that thereafter three tax deeds were issued by the county clerk of Cook county to Albert H. Glos on said sales; that he subsequently conveyed all interest acquired by the tax deeds to the Elmhurst State Bank, a corporation, as trustee; that neither Glos nor the Elmhurst State Bank was in possession, but that Fannie E. Bowers was in possession, and that she is desirous of obtaining a reconveyance, and for that purpose had tendered to the bank the sum of $82.60, being, as alleged, the total sum paid out by Glos and the Elmhurst State Bank, or either of them, together with the statutory fees and costs incurred, and that the bank refused to accept said sum and refused to reconvey. The petitioner offered to pay the county treasurer the amount alleged to have been tendered, which was based upon an estimate made by the county clerk of Cook county. The petitioner also prayed that a fine of $200 be assessed against Glos and the Elmhurst State Bank, and that the sheriff of Cook county or some master in chancery be ordered to execute a reconveyance.
The Elmhurst State Bank filed an answer denying that the petitioner was the owner of the property, alleging that it was the owner of the premises and had a valid subsisting title thereto in fee simple, and that the petition involved a controverted question of title, of which the county court had no jurisdiction. The answer also alleged that the Reconveyance Act violated and contravened the Constitution of the United States and the Constitution of the state of Illinois in various particulars.
Albert H. Glos filed a limited appearance for the purpose of contesting and questioning the jurisdiction of the court, which was followed by a plea filed October 1, 1930, setting up that this was, and is, an original proceeding instituted and filed on February 4, 1930, and was not filed in the matter of the application of the county treasurer for judgment for delinquent taxes, as the Reconveyance Act directs, but was a separate and independent proceeding at law, and that therefore the court was without jurisdiction; that there had been no legal or valid process of service upon Glos; and that the court had no jurisdiction of the subject-matter because it involved the title to real estate. No ruling was made on this plea. A hearing was had on October 25, 1930, before the judge of the county court of McHenry county sittingas a judge of the county court of Cook county.
There is no conflict in the evidence. It shows that no action had been commenced to dispossess Fannie E. Bowers or Cora A. Wilder. A warranty deed to Cora A. Wilder was received in evidence, also an unsigned inventory for her estate filed in the probate court of Cook county, in which the real estate was listed and described. Testimony was given to the effect that Fannie E. Bowers was in possession of the property during the absence of Cora A. Wilder, and that since her death Fannie E. Bowers had remained in possession, and that there had been no conveyance made by her. The county clerk's estimates were offered in evidence showing the amount to which the holder of the tax title would be entitled on setting the same aside.
At the close of evidence a judgment order was entered finding that there had been tax sales to Albert H. Glos and that tax deeds were issued to him; that the tax interest had been conveyed to the Elmhurst State Bank; that a valid tender had been made and refused, and that a demand to reconvey was also refused; that there had been due notice of the date set for hearing; and it was ordered, adjudged, and decreed that petitioner pay $82.60 to the county treasurer, and that Harry A. Riley, a master in chancery, reconvey the premises to petitioner, in the name of the Elmhurst State Bank, a corporation, and Albert H. Glos and wife, and that the bank and Glos be fined in the sum of $50. From this judgment an appeal was prayed for and denied and time allowed to file a bill of exceptions. The cause is here on writ of error.
The principal errors relied upon for a reversal of the judgment order are that the county court had no jurisdiction of the subject-matter because it involved a controvertedquestion of title to real estate; that the court erred in directing the amount of the tender to be deposited with the county treasurer, and that a master in chancery execute a deed of conveyance in the nane of Albert H. Glos and the Elmhurst State Bank, as trustee; and that the act relating to reconveyance of tax titles is unconstitutional and void because it is in violation of the Constitution of the United States and the Constitution of the state of Illinois in numerous particulars, as set forth in the answer of the Elmhurst State Bank and in the assignment of errors.
The Reconveyance Act does not violate that provision of section 5 of article 9 of the Constitution of Illinois of 1870 which declares that the ‘right of redemption from all sales of real estate for the non-payment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested in such real estate, for a period of not less than two years,’ or the provision of the Revenue Law § 210 (Smith-Hurd Rev. St. 1929, c. 120, § 196) that tax sales are redeemable ‘at any time before the expiration of two years from the date of sale.’ The act relating to reconveyance of tax titles, the constitutionality of which is here involved, is as follows:
* * *’ (Laws 1909, p. 146 Laws 1915, p. 577).
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