Gage v. Lyons
| Citation | 28 N.E. 832,138 Ill. 590 |
| Parties | GAGE v. LYONS. |
| Decision Date | 31 October 1891 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from superior court, Cook county; EGBERT JAMISON, Judge.
Bill in equity by James S. Lyons against Asahel Gage to set aside tax-deeds. There was judgment for complainant, and respondent appeals. Affirmed.
A. N. Gage, for appellant.
H. S. Mecartney, for appellee.
This was a bill in equity to set aside two tax-deeds made by the county clerk of Cook county to Asahel Gage, dated, respectively, November 16 and 17, 1880, on a sale for taxes made in September, 1878, for delinquent taxes, special assessments, and costs, as clouds on complainant's title. The bill is in the usual form, and sets up the invalidity of the taxtitles. Two of the matters alleged and relied upon only will be noticed in this opinion. The ownership of the lots in appellant is alleged, and that there was not sufficient proof of service of notice on the occupants of the land; and that there were included in the judgment upon which said sales were made, respectively, 17 cents excessive costs, and the deeds for that reason are void, and are clouds upon the complainant's title; and offers to pay the amount of the tax-sale, subsequent taxes, with interest, and such other sums as equity may require. The cause was heard upon bill, answer, replication, and proofs. One of the principal grounds relied on as justifying the decree of the superior court setting aside the deed is that the judgment upon which the deeds were severally predicated contained 17 cents costs not authorized by law. If the judgment against land for taxes includes an illegal tax or improper costs, and there is no appearance by the owner a sale of the property thus wrongfully charged will be void. Rive, side Co. v. Howell, 113 Ill. 256;McLaughlin v. Thompson, 55 Ill. 249;Drake v. Ogden, 123 Ill. 603, 21 N. E. Rep. 511. In Combs v. Goff, 127 Ill. 431, 20 N. E. Rep. 9, we held that if the judgment included costs not due or earned at the time of its rendition, but to accrue subsequently to the entry of the judgment, the error was fatal, and no title passed by virtue of a sale and tax-deed under such judgment. See, also, Harland v. Eastman, 119 Ill. 27, 8 N. E. Rep. 810. The record of the proceedings in the county court, in which said judgment for taxes was rendered, was produced at the hearing, and it does not appear therefrom that there was an entry of appearance by appellee or objections filed by him to the entry of said judgments. In addition to this, a witness was produced by complainant, who testified that he was familiar with the tax judgment records of Cook county; that he had made diligent search for and was unable to find among the files of said court any objections filed or papers showing such appearance. Conceding, as contended by appellant, that the burden was upon appellee to show negatively that no appearance was entered or objection filed, this evidence, in the absence of any thing showing the contrary, sufficiently established that fact, and appellant is therefore not estopped by the judgment from showing that it was for too large a sum, or that it included costs in excess of what were legally chargeable.
It is said by counsel that it cannot be told, in respect of the deed predicated upon the sale made for the special assessment, which were the costs in making the special assessment, and which were charged by the collector and entered into the judgment as costs, upon his return of the special assessment as delinquent. This is a mistake. The judgment was for $1.81, and made up of the following items:
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¦Amount of installment of assessment due¦.71 ¦
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¦Interest ¦.70 ¦
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¦Costs ¦.40 ¦
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¦Total ¦$1.81¦
+---------------------------------------------+
The 40 cents costs, included in the judgment, counsel for appellant says in his brief, were made up of the following items, and were, as he insists, properly included:
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¦Making delinquent list to be filed with county¦ ¦
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...v. Busse, 114 Ill. 589, 3 N. E. 441;Gage v. Williams, 119 Ill. 563, 9 N. E. 193;Drake v. Ogden, 128 Ill. 603, 21 N. E. 511;Gage v. Lyons, 138 Ill. 590, 28 N. E. 832;Gage v. Goudy, 141 Ill. 215, 30 N. E. 320, 322; and Glos v. Woodard, 202 Ill. 480, 67 N. E. 3, 5, that in judgments by default......
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The McCague Investment Co. v. Mallin
...the tax deed was issued avoids the deed. (McCann v. Merriam, 11 Neb. 241, 9 N.W. 96; Boyce v. Sebring, 66 Mich. 210, 33 N.W. 815; Gage v. Lyons, 138 Ill. 590; Gage v. Nichols, 135 Ill. 128; Riverside Co. Howell, 113 Ill. 256; Gage v. Pumpelly, 115 Ill. 454; McLaughlin v. Thompson, 55 Ill. 2......
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Davis v. Minnesota Baptist Convention of Minneapolis, Minn
... ... facts. See also, 37 Cyc. 1406; 4 Cooley, Law of Taxation (4th ... Ed.), § 1670. In Gage v. Lyons, 138 Ill. 590, ... 28 N.E. 832, 834, the court, speaking of the necessity of ... service of such a notice on all persons in the actual ... ...
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...for adopting the substituted service provided for in the service of an original notice in that action." The case of Gage v. Lyons, 138 Ill. 590, 28 N.E. 832, involves a tax title, just as in the case at bar. And court said, in connection with the point under discussion, as follows: "The sta......