Clark v. Zaleski

• Decision Date: 09 February 1912
• Parties: CLARK v. ZALESKI et al.
• Court: Illinois Supreme Court

253 Ill. 63

97 N.E. 272

CLARK

v.ZALESKI et al.

Supreme Court of Illinois.

Dec. 21, 1911.

Rehearing Denied Feb. 9. 1912.

Appeal from Superior Court, Cook County; Martin M. Gridley, Judge.

Suit by Edwin M. Clark against Robert Zaleski and others for the partition of real estate. From a decree granting partition, defendant Jacob Glos and others appeal. Affirmed.John R. O'Connor, Marvin E. Barnhart, and William Garnett, for appellants.

Enoch J. Price, John S. Brown, and Sherman C. Spitzer (Charles L. Bartlett, of counsel), for appellees.

VICKERS, J.

This is an appeal by Jacob Glos, August A. Timke, Willis V. Elliott, and William Shillaber, Jr., in his own right and as trustee, from a decree of the superior court of Cook county finding the interests of the parties, granting partition among them and appointing commissioners, rendered on a bill for the partition of 53 lots in the city of Chicago, wherein Edwin M. Clark was complainant and Robert Zaleski and others were defendants. The decree found that Clark and Zaleski were the owners in fee simple, in equal parts, of the premises sought to be partitioned. The errors assigned question the correctness of the finding in respect to the title of Clark and Zaleski.

The title of appellees, Clark and Zaleski, was obtained by conveyance from B. H. Collier and S. B. Tefft, whose claim of title was obtained under a sale and deed made in pursuance of decree entered in the circuit court of Cook county in a proceeding to foreclose a tax lien in favor of the people of the state of Illinois for forfeited taxes on the premises in question, under section 253 of the Revenue act (Hurd's Rev. St. 1909, c. 120). The principal controversy between the parties relates to the validity of the proceeding to foreclose the tax lien. Appellants contend that the decree granting a foreclosure of the tax lien is void for the want of jurisdiction and that the deed based thereon conveyed no title. Appellees contend that the court had jurisdiction both of the subject-matter and of the parties, and that the title obtained under its decree is not open to question in a collateral proceeding, however erroneous such decree may be. Since the whole controversy depends upon the validity of the foreclosure proceeding, it will be necessary to stated the history of that proceeding somewhat in detail.

It appears from the bill filed in the foreclosure proceeding that in 1891 Arthur S. Rundall was the owner in fee, except railroad right of way of the Chicago, Milwaukee & St. Paul Railroad Company, of the S. W. 1/4 of the N. E. 1/4 of the S. W. 1/4 of section 35, township 40 north, range 13 east of the third principal meridian, in Cook county, Ill.; that said Rundall derived title to said premises by a regular chain of conveyances from the United States government; that said premises were at that time subject to certain trust deeds to the Northern Trust Company, and that the said Rundall, on December 2, 1891, platted the said premises into a subdivision known and described as J. R. Lane's subdivision. All of the lots involved in this suit are in said subdivision. The bill alleges that by certain conveyances Willis V. Elliott, on August 4, 1906, became the owner of 23 of said lots, being lots 1 to 6, 57 to 66, and 84 to 90, and that on November 20, 1905, William Shillaber, Jr., held title to 30 of said lots, being lots 10 to 13, 45 to 50, 52 to 54, and 67 to 83. It is alleged that from time to time said lots were sold to Jacob Glos for delinquent taxes and that numerous tax deeds were issued to said Glos covering all of the lots in question, and that other tax sales were made of the said premises and deeds issued thereon to the city of Chicago. These several tax sales were made at various times between September 1, 1893, down to October[253 Ill. 67]5, 1905. The bill to foreclose the tax lien alleges that all of the above-described lots were duly forfeited to the state of Illinois for the unpaid general taxes levied thereon for the years from 1900 to and including 1903. The aggregate amount of taxes, interest, and penalties due at the time the bill was filed was $2,588.54. On April 7, 1905, a bill was filed in the circuit court of Cook county to foreclose the statutory lien against Lynden Evans, James R. Lane, Herbert L. Bailey, Arthur S. Rundall, John Lewis, William Shillaber, Jr., Jacob Glos, Eugene H. Fishburn, the Northern Trust Company, the unknown owners of the notes described in the trust deeds to said Eugene H. Fishburn, the Northern Trust Company, and all unknown owners of the premises in question. All of the defendants to the said foreclosure proceeding were served, either by personal service of summons or by publication and mailing of notice, in accordance with the usual chancery practice. Jacob Glos, Lynden Evans, William Shillaber, Jr., and Eugene H. Fishburn personally appeared by their respective solicitors and filed answers in said proceeding. All other defendants failing to appear were defaulted. The answer of Lynden Evans alleged that he was the owner of thirty of said lots in fee, by quitclaim deeds from Arthur S. Rundall and James R. Lane; and the answer of William Shillaber, Jr., as trustee under the last will of Jason Rogers, deceased, averred that he was the owner of one of the notes of $5,250 described in and secured by the trust deed to the Northern Trust Company. Fishburn's answer denied all of the allegations of the bill and asked for strict proof. Jacob Glos answered the bill, and stated that he was not informed as to the truth of any of the allegations of the said bill, ‘except said allegation that this defendant claims some interest in the premises described therein, and as to said last-mentioned allegation this defendant admits the same, but denies that his interest in said premises was or is subject to the lien of complainant.’ Replications having been filed to the several answers, the cause was referred to the master. The master took the testimony and made a report finding in favor of the complainant, and recommended a decree of foreclosure for the tax lien in accordance with the prayer of the bill. To the master's report appellant Glos filed numerous objections, all of which were overruled by the master.

On October 11, 1905, the foreclosure proceeding came on for final hearing before the court upon the bill, answers thereto, and replications, and the master's report and the objections thereto, and the court made and entered a final decree of foreclosure in the cause, finding that the court had jurisdiction of the subject-matter of the suit and of all the parties thereto, and that the allegations of the bill were true, and specifically finding that the premises in question had been duly forfeited for unpaid taxes, as set out in the bill, and found the amount due to be $2,539.07, and ordered and adjudged that unless the defendants to said proceeding, or some of them, paid said amount so found due within three days thereafter, said real estate be sold by the county treasurer of said Cook county to the highest and best bidder for cash, at his office in Chicago. The decree required that the sale should be upon notice published for three successive weeks, and that the county clerk should attend said sale and make, execute, and deliver to the purchaser a certificate or certificates of sale, and that the county treasurer should make a report to said court of said sale and bring the proceeds thereof into court to abide further order. By said decree it was, among other things, further ‘ordered, adjudged, and decreed that upon the expiration of two years from and after the date of said sale, if the premises so sold shall not be redeemed according to law, the defendants, and all persons claiming under them or any of them since the commencement of this suit, be forever barred and foreclosed of any and all rights and equity of redemption or claim of, in or to said premises or any part thereof, and in case said premises shall not be redeemed, as aforesaid, then, upon the production to the then acting county clerk of said county of Cook, Ill., of said certificate or certificates of sale by the legal holder thereof, said county clerk shall execute and deliver to the legal holder of said certificate or certificates a good and sufficient deed of conveyance of said premises, in conformity with the statute in such case made and provided, and that thereupon the grantee or grantees in such deed, or his or their legal representatives or assigns, be let into possession of said premises or any portion thereof, and any persons who may have come into possession under the defendants, or any of them, since the commencement of this suit, shall, upon the production of said deed of conveyance and a certified copy of the order of court confirming said sale, surrender possession of said premises to said grantee or grantees, his or their representatives or assigns, and in default of so doing a writ of assistance may issue herein, in accordance with the practice of this court.’ Appellant Glos prayed and was allowed an appeal from said decree, but never perfected the same.

In pursuance of this decree John R. Thompson, county treasurer and collector of Cook county, duly advertised said premises for sale on December 8, 1906, by publication, for four successive weeks, of notice of such sale in the Chicago Law Journal Weekly, and sold the same to Walter Langlois for $2,050, and on December 14, 1906, made a detailed report of said sale to the circuit court, showing that he had sold said lots to said Langlois for $2,050, ‘there being no bidder for said lots separately or in any combination less than the whole.’ Said report showed that the county treasurer had issued to said Langlois a certificate of sale, as directed by the decree, and that the money arising from said sale was brought into court by said treasurer. On the day said report was filed an order was made by the court approving and confirming...