Gage v. Dupuy

• Decision Date: 14 May 1890
• Citation: 137 Ill. 652,24 N.E. 541
• Parties: GAGE v. DUPUY et al.
• Court: Illinois Supreme Court

137 Ill. 652

24 N.E. 541

GAGE

v.DUPUY et al.¹

Supreme Court of Illinois.

May 14, 1890.

Appeal from superior court, Cook county.

Augustus M. Gage, for appellant.

Geo. M. Stevens, for appellees.

SCHOLFIELD, J.

This bill was originally filed by William Baker, against Henry H. Gage, to set aside certain tax-deeds as clouds upon Baker's title. Subsequently, George A. Dupuy filed a supplemental bill alleging that, after the filing of the original bill, he purchased from Baker an undivided 29-30 of the property which was conveyed to him by deed; and thereafter the suit was prosecuted in the joint names of Baker and Dupuy. Answers were filed, putting in issue the allegations of the bill and suplemental bill. On the hearing the court decreed in favor of the complainants, from which Gage prosecutes this appeal. The first, second, third, and fourth grounds upon which a reversal of the decree below is urged are, in our opinion, destitute of merit, and demand but brief notice. They are:

First. That George A. Dupuy is not entitled to any equitable standing in this court, because the contract under which he is conducting this case is champertous, and repugnant to public policy.' This is not sustained by the proof. Fetrow v. Merriweather, 53 Ill. 275. But, if it were, this is not a proceeding for specific performance of a contract alleged to be champertous. The contract between Baker and Dupuy has been fully executed. There is no controversy between them; and whether the suit shall be prosecuted in the name of Baker alone, or in the names of Baker and Dupuy jointly, cannot be of the slightest consequence to Gage. It is, therefore, not admissible that he shall be allowed to interpose the defense of champerty, in a transaction in which he has no interest, in this collateral way. Torrence v. Shedd, 112 Ill. 466.

Second. That ‘the tax-deed executed by the county clerk on April 19, 1882, to lots 21 and 22, is a valid deed, and conveys the title of those lots to appellant.’ The allegation of the bill in regard to notice of the tax-sale, which the decree finds was proved, is that the only notice of the tax-sale that was given was a published notice, and that the notice so published failed to state that the property was taxed for any year, or specially assessed for any year; that the published notice did not state whether the lots were sold for taxes for 1875 and 1876, or for a special assessment for said years. In our opinion, the decree is sustained by the evidence. But counsel insist that objection is obviated because a sufficient notice was served upon the person in whose name the property was taxed. That notice, however, reads: ‘Was taxed or specially assessed for the years of 1875 and 1876 for taxes, as extended in the general tax-warrant.’ In a general sense, both money raised by direct taxation and special assessment is taxes. White v. People, 98 Ill. 604. But who can tell from this notice whether the amount for which the property was sold was for a tax or a special assessment? Like objection was held fatal in Gage v. Waterman, 121 Ill. 115, 13 N. E. Rep. 543; Still well v. Brammell, 124 Ill. 338, 16 N. E. Rep. 226.

Third. That, ‘as a condition of relief, appellee should have been required to pay to appellant not only the amount of the several sales, but one hundred per cent. in addition thereto.’ We have held to the contrary in Gage v. Pirtle, 124 Ill. 502, 17 N. E. Rep. 34; Ames v. Sankey, 128 Ill. 523, 21 N. E. Rep. 579; and we deem it unnecessary to rediscuss the question.

Fourth. That ‘appellant should not have been required to pay the costs of the reference of that case to the master.’ The tender was of more than the amount found to be actually due to the appellant. He refused to receive it. The reference was because of that refusal, and the evidence shows that appellant was in the wrong in the refusal. He ought, therefore,in justice, to pay the costs which his wrongful conduct occasioned.

The fifth ground of reversal urged by appellant is, in our opinion, meritorious. It is that ‘appellees received relief without being required to pay to appellant any sum whatever for the several items of taxes extinguished by appellant as a condition precedent to such relief.’ The decree, so far as affects this ground, reads as follows: ‘That the master has filed his report, and, the cause coming on to be heard, it is ordered,...