Drake v. Ogden

• Decision Date: 16 May 1889
• Citation: 21 N.E. 511,128 Ill. 603
• Parties: DRAKE et al. v. OGDEN.
• Court: Illinois Supreme Court

128 Ill. 603

21 N.E. 511

DRAKE et al.

v.OGDEN.

Supreme Court of Illinois.

May 16, 1889.

Appeal from circuit court, Cook county; LORIN C. COLLINS, Judge.

This was a petition under the ‘burned record act,’ to establish title to certain lots in the village of Hyde Park, near the city of Chicago. Defendant, Isaac C. Ogden, claims under a tax-title. From a decree sustaining the validity of such title, John B. Drake and George D. Phelps appeal.H. S. Mecartney, for appellants.

Wilson & Moore, for appellee.

CRAIG, C. J.

The premises in controversy were sold for taxes on the 1st day of September, 1882, and purchased by John Carne, Jr. A deed issued on the tax-sale January 29, 1885, and the only question presented by the record is whether the title to the premises passed by the sale and deed. The objections urged against the tax-title in the argument are as follows: (1) That every person in actual occupancy or possession of the premises was not served with notice of sale. (2) That the notice served and published is not a legal notice. (3) That the premises in question were sold out of their order. (4) That the judgment under which the premises were sold included illegal charges and costs. Section 216 of the revenue law provides that, before any purchaser at a tax-sale shall be entitled to a deed, he shall, among other things, serve or cause to be served a written or printed, or partly written and partly printed, notice of such purchase on every person in actual possession or occupancy of such land, at least three months before the expiration of the time of redemption on such sale; in which notice he shall state when he purchased the land, in whose name taxed, the description of the land he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire. As a compliance with the above provision of the statutes, before the deed issued an affidavit of Edward W. Cross was filed with the county clerk as follows: That he is the agent of John Carne, Jr. That, as such agent, ‘deponent on the 15th day of May, A. D. 1884, being at least three months before the expiration of the time of redemption on the sale mentioned in annexed notice, served a notice, of which the annexed notice is a true copy, on James Doyle by handing the same to and leaving the same with James Doyle, personally, in said county of Cook. Deponent is acquainted with the land or lots mentioned in said notice; and the person so served was the only person in actual possession or occupancy of the land or lots on the 15th day of May, A. D. 1884.’ On the trial appellants undertook to prove that the affidavit was not ture; that James Doyle was not the only person in the possession of the premises at the time the notice was served, but, on the contrary, the South Park commissioners were in possession of a part of the premises. It appears from the evidence that in 1873 Daniel H. Horn, who represented Carrie C. Gibbons, gave permission to James Doyle to move on the premises. On December 8, 1873, Doyle accepted a lease of the whole of lots 15 and 16,-the premises in question,-by the terms of which he agreed to pay a rent of $4.50 per month; and under this lease he occupied the premises from that time until the notice was served on him in 1884. It is not claimed that the South Park commissioners had any lease of the premises, or any part thereof, or that the commissioners cultivated or occupied any part of the premises, but it is said that the commissioners stacked hay in a pasture of the premises, and thus were in the actual occupancy. We have examined the evidence bearing upon this question, and we do not regard it sufficient to establish actual possession or occupancy in the South Park commissioners. In 1875 a Mr. Berry obtained the consent of Horn and the tenant Doyle to stack hay in a pasture of the premises. Hay-stacks were put up each year, and boards put round them to keep the hay from getting wet. These boards around the hay are spoken of in the argument as hay-barns; but there was no such thing as a hay-barn on the premises. No rent was paid for the privilege of stacking hay on the premises, or agreed to be paid. The commissioners did give Horn and Doyle, and perhaps Kelly, hay; but there was no arrangement or agreement that it should be given or accepted as rent. Doyle and his wife looked after the hay, to keep out tramps and to guard against fire, and their cows, in return, ran around the stacks and ate some hay, but the hay thus used was not rent, nor so understood.

If the building of a stack or two of hay on a tract of land actually occupied by another, and inclosing the stack with boards to protect it from the rains, is an act sufficient to place the owner of the hay in the actual possession or occupancy of the land, within the meaning of the statute, then it might be said that notice should have been served on the commissioners; but we do not think such was the case. Doyle was residing on the premises with his family, and was in the actual occupancy of the whole of both lots; and the fact that the commissioners had hay on the premises gave them no possession or occupancy, within the meaning of the revenue law. Supposea farm of 160 acres is sold for taxes; and, when the purchaser goes upon the premises to serve notice on those in actual possession, he finds A. residing on the land, under a lease for the entire tract. When a notice is served on A., the terms of the statute have been observed, and the purchaser concludes that he has done all that the law requires. But it turns out on one part of the farm there is standing a crib of corn belonging to a tenant who occupied the premises the year before; on another part of the farm is a bin of wheat belonging to a former tenant; on another part is a stack of hay purchased by some person residing in the neighborhood. Are all these persons actual occupants of the premises, and entitled to notice? We think not. To so hold would render the statute absurd; and yet, if notice was required to be given...