Gage v. Bani

• Decision Date: 26 October 1891
• Parties: GAGE v. BANI
• Court: U.S. Supreme Court

141 U.S. 344

12 S.Ct. 22

35 L.Ed. 776

GAGE v. BANI.

October 26, 1891.

The appellee, Bani, claiming to be the owner in fee, and being in the actual possession, of lots 12 and 13 in block 2 of Lewis Heintz's subdivision of 24 acres in the town of Lake, Cook county, Ill., brought this suit December 6, 1883, for a decree setting aside and declaring void three several tax-deeds, covering those lots, and which were held by the defendant, Asahel Gage.

It is alleged in the bill that the plaintiff derived title by warranty deed from Peter Caldwell and wife, of date May 15, 1882, the consideration being $3,000; that his purchase was without notice of any adverse claim or title; that from the 27th day of April, 1868, until such purchase, Caldwell was the owner in fee of the premises, with a complete title deducible of record, and in actual and continued possession, under claim and color of title, paying taxes thereon for a period of more than seven years; and that prior to his purchase, to-wit, on the 27th of March, 1880, the plaintiff took possession, as Caldwell's tenant, and in that capacity occupied the premises up to the date of the deed to him, thereafter holding and occupying them as owner, under claim and color of title, paying all taxes and assessments legally made thereon.

The tax-deeds held by Gage, against which the bill was particularly aimed, were dated, respectively, July 3, 1880, June 30, 1880, and July 6, 1880. The one of July 3, 1880, was based upon a judgment of the county court at its July term, 1877, for the amount of the third installment of a special assessment, warrant 36, assessed by authority of the town of Lake, which, with interest and costs, amounted to $6.98; the one of June 30, 1880, upon a judgment for the fifth installment of South Park assessment for the year 1876, amounting, with interest and costs, to $3.38; and the one of July 6, 1880, upon a judgment for state, county, and city taxes for 1876, amounting, with interest and costs, to $16.88.

The bill also alleges that the plaintiff, having learned for the first time in March, 1883, of these tax-deeds, immediately offered to pay any sum reasonably necessary to cover all expenditures by Gage for taxes. costs, and disbursements, together with interest and penalties, if a quitclaim deed was made to him; and that Gage refused such offer, pretending that the lots belonged to him.

The plaintiff, after setting out numerous grounds upon which he assails the validity of these tax sales and deeds, and renewing his offer to reimburse the defendant for all sums paid an account of taxes and assessments upon the property, with damages and penalties, prayed that the tax-deeds, which were fair upon their face, be declared void, and decreed to be surrendered for cancellation.

The defendant pleaded in bar of the suit that on the 24th of July, 1876, the county clerk of Cook county, under the pro- visions of chapter 120 of the Revised Statutes of Illinois, executed and delivered a tax-deed conveying to him, his heirs and assigns, forever, the title to the lots in the bill mentioned; and that afterwards, on the 3d day of August, 1876, that deed was filed for record, and recorded in the proper office.

This plea was held to be insufficient, and the defendant, with leave of the court, filed an answer, relying, in support of his claim to the lots, on the tax-deed of July 24, 1876, as well as upon 'divers other good and sufficient tax-deeds, all of which are duly recorded in the recorder's office of Cook county aforesaid, and are matters of public record, each of which is based upon a vaild judgment and precept.' The answer makes no express reference to the deeds of July 3, June 30, and July 6, 1880

The plaintiff having paid into conrt the sum of $150 for the defendant on account of tax-sales, costs, and disbursements, taxes, and interest, it was adjudged that he was the owner in fee of the lots in question, and that the tax sales and deeds under which the defendant claimed title were void.

By the statutes of Illinois in force when the sales were made, upon which the tax-deeds in question were based, it was, among other things, provided: 'Sec. 216. Hereafter no purchaser or assignee of such purchaser of any land, town or city lot, at any sale of lands or lots for taxes or special assessments, due either to the state or any county or incorporated town or city within the same, or at any sale for taxes or levies otherwise, by the laws of this state, shall be entitled to a deed for the lands of lots so purchased, until the following conditions have been complied with, to-wit: Such purchaser or assignee shall 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 or lot, and also the person in whose name the same was taxed or specially assessed, if upon diligent inquiry he or she can be found in the county; also the owners of or parties interested in said land or lot, if they can, upon diligent inquiry, be found in the county,—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 or lot, in whose name taxed, the description of the land or lot he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire. If no person is in actual possession or occupancy of such land or lot, and the person in whose name the same was taxed or specially assessed, upon diligent inquiry, cannot be found in the county, then such person or his assignee shall publish such notice in some newspaper printed in such county, and, if no newspaper is printed in the county, then in the nearest newspaper that is published in this state to the county-seat of the county in which such land or lot is situated; which notice shall he inserted three times, the first time not more than five months, and the last time not less than three months, before the time of redemption shall expire.

'Sec. 217. Every such purchaser or assignee, by himself or agent, shall, before he shall be entitled to a deed, make an affidavit of his having complied with the conditions of the foregoing section, stating particularly the facts relied on as such compliance, which affidavit shall be delivered to the person authorized by law to execute such tax-deed, and which shall by him be filed with the officer having custody of the record of the lands and lots sold for taxes and entries of redemption in the county where such lands or lots shall lie, to be by such officer entered upon the records of his office, and carefully preserved among the files of his office, and which record or affidavit shall be prima facie evidence that such notice has been given. Any person swearing falsely in such affidavit shall be deemed guilty of perjury, and punished accordingly.'

'Sec. 219. At any time after the expiration of two years from date of sale of any real estate for taxes or special assessments, if the same shall not have been redeemed, the county clerk, on request, and on the production of the certificate of purchase, and upon compliance with the three preceding sections, shall execute and deliver to the purchaser, his heirs or assigns, a deed of conveyance for the real estate described in such certificate.'

'Sec. 225. Unless the holder of the certificate for real estate purchased at any tax-sale under this act takes out the deed, as entitled by law, and files the same for record, within one year from and after the time for redemption expires, the said certificate or deed, and the sale on which it is based, shall, from and after the expiration of such one year, be absolutely null. If the holder of such certificate shall be prevented from obtaining such deed by injunction or order of any court, or by the refusal of the clerk to execute the same, the time he is so prevented shall be excluded from the computation of such time. Certificates of purchase and deeds executed by the county clerk shall recite the qualifications required in this section.' Rev. St. Ill. 1874, tit. 'Revenue,' pp. 893-895.

These regulations were established in obedience to the fifth section of article 9 of the constitution of Illinois of 1870, providing: '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 from such sales thereof; and the general assembly shall provide by law for reasonable notice to be given to the owners and parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes of assessments, and when the time of redemption shall expire: provided, that occupants shall in all cases be served with personal notice before the time of redemption expires.'

Augustus N. Gage, for appellant.

Levi Sprague, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

It is not necessary to consider whether the defendant's plea was or was not sufficient, for the facts alleged in it, anmely, the execution by the county clerk to Gage of the tax-deed of July 24, 1876, and the recording of that deed, are restated and relied on in the answer; and no objection was made in the court below to the answer upon the ground that it set up the same matter presented by the plea. Story, Eq. Pl. § 688.

In respect to that tax-deed, it appears that the sale upon which it was based was made August 29, 1873. Did Gage serve or cause to be served upon Caldwell notice of that sale, as required by the statute? The notice presented to the county clerk at the time of the application for a deed, and which Gage claimed was served August 14, 1874, upon Caldwell personally, was as follows: 'To whom it may concern: This is to notify you that on the...