Gage v. Pumpelly

• Decision Date: 23 November 1885
• Citation: 115 U.S. 454,29 L.Ed. 449,6 S.Ct. 136
• Parties: GAGE v. PUMPELLY and others. Filed
• Court: U.S. Supreme Court

6 S.Ct. 136

115 U.S. 454

29 L.Ed. 449

GAGE v. PUMPELLY and others.

Filed November 23, 1885.

Appellee's testator, plaintiff below, was in the possession, and claiming to be the owner of a certain lot of ground in Chicago, for which the appellant, who was defendant below, held deeds executed by the county clerk of Cook county, Illinois, on the sixth of September, 1877, and fourth of February, 1880; which deeds were based on sales made October 27, 1874, and October 3, 1877, for the non-payment of taxes. These sales were in pursuance of judgments of the county court, rendered at the instance of the treasurer of Cook county, who was, ex officio, the collector of its revenue. To the proceedings in the county court the plaintiff did not appear, nor was he a party thereto, otherwise than by publication in a newspaper, giving notice of the application for judgments, and, subsequently, of the order for the sale of the property for non-payment of the taxes assessed against it. The present suit was brought for the purpose of removing the cloud on the plaintiff's title, arising from the before-mentioned sales and tax deeds, and to obtain a decree requiring the defendant to convey to the plaintiff such rights and interests as he had thus acquired. The plaintiff in the bill avows his readiness and willingness to pay, not only the defendant's disbursements for the legal taxes included in the judgments of the county court, but such additional sum as to the court seemed proper. It was adjudged by the circuit court that the plaintiff should pay the redemption moneys allowed by statute, had the judgments and sales been only for legal taxes, with 6 per cent. interest in each case, from the expiration of two years after the tax sale; also, such other taxes as defendant subsequently paid upon the lot in question, with interest at the like rate on the amount of each payment. The aggregate of such payments was ascertained to be $1,118, as of May 1, 1882. The defendant having declined to accept that sum with interest, and the same having been paid into court for his use, it was finally adjudged that the title acquired by defendant, in virtue of the sales and deeds, be set aside and held for naught as against plaintiff, and that the deeds be delivered up and canceled.

A. N. Gage and N. G. Riddle, for appellant.

[Argument of Counsel from pages 455-458 intentionally omitted] E. G. Mason, for appellees.

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

The constitution of Illinois declares that the right of redemption from 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 intersted, for a period of not less than two years from such sales. And it imposes upon the general assembly the duty of providing by law 'for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or 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.' Article 9, § 5.

By the statutes in force when these sales were had, no purchaser, nor the assignee of any purchaser, of land, town or city lot, at any sale for taxes or levies authorized by the laws of the state, was entitled to a deed for the lands or lots so purchased, until he served, or caused to be served, a written or printed, or partly written and partly printed, notice of his 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 diligently inquiring, he can 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 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 search and inquiry, cannot be found in the county, then such person or his assignee shall publish such notice in some newspaper printed in such county, * * * which notice shall be 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.' Rev. St. Ill. 1874, c. 120, p. 893.

The bill impeaches the defendant's title, in respect of the first deed he received, upon the ground that it was acquired in violation of these constitutional and statutory provisions; and, in respect of his title under both deeds, upon the ground that the assessment of taxes upon the lot in question, for the non-payment of which the county court ordered the sales, included, in each instance, illegal taxes for which the premises were not liable, and which the owner was not bound to pay. The appellant insists that these objections to his title are so far concluded by the judgments of the county court that they cannot be urged in any collateral proceeding or suit, the only remedy of the owner of the property being, it is contended, by appeal to the supreme court of the state. His argument is that, by the constitution and laws of the state, the county court is a court of record, with general original jurisdiction in the matter of the sale of lands for delinquent taxes; that proceedings in such cases are in rem against the property assessed; and that judgment therein rendered is conclusive upon the tax-payer, so long as it remains unmodified by the court which rendered it, or until it is set aside in some direct mode for fraud or collusion, or is reversed upon appeal for error. In support of the general rule that forbids collateral attack upon the judg- ment or decrees of a court having jurisdiction of the subject-matter and of the parties, and where the want of jurisdiction does not appear upon the record, numerous authorities are cited by appellant's counsel. But they have no application to cases like the present one, as the settled course of decision in the highest courts of the state abundantly shows. It will be well to examine a few of the cases determined in that court. In McLaughlin v. Thompson, 55 Ill. 249, which was an action of ejectment in which the plaintiff asserted a tax title, the validity of which the defendant disputed upon the ground...