Glos v. Garrett

• Decision Date: 20 December 1905
• Citation: 219 Ill. 208,76 N.E. 373
• Parties: GLOS et al. v. GARRETT.
• Court: Illinois Supreme Court

219 Ill. 208

76 N.E. 373

GLOS et al.

v.GARRETT.

Supreme Court of Illinois.

Dec. 20, 1905.

Appeal from Superior Court, Cook County; Theodore Brentano, Judge.

Bill by Jennie G. Garrett against Jacob Glos and others. From a decree in favor of complainant, defendants appeal. Affirmed.

Rehearing denied February 7, 1906.

Jacob Glos, pro se.

John R. O'Connor, for appellant Emma J. Glos.

Alfred E. Holt and Willard D. Norton (Otis H. Waldo, of counsel), for appellee.

CARTWRIGHT, C. J.

The superior court of Cook county entered a decree upon a bill filed by the appellee, Jennie G. Garrett, setting aside a tax deed of premises in said county to the appellant Jacob Glos and a quitclaim deed of an undivided one-third of said premises from him to the appellant Emma J. Glos, and requiring Jacob Glos to pay two-thirds of the master's charges upon a reference and Emma J. Glos to pay one-third.

Appellants contend that there was no competent evidence that appellee owned the premises at the time the bill was filed. The evidence of title consisted of a certified copy of a warranty deed from Jonathan Pettet and wife to appellee and proof of possession. The solicitor for appellee made an affidavit, in compliance with the statute, for the purpose of introducing a certified copy of the record. Appellants asked the privilege of cross-examining the maker of the affidavit as to its contents, and the request was denied. The solicitor testified generally in the case, but the proposed examination would not have been cross-examination as to anything he testified to as a witness. The affidavit was positive in its terms and met all the requirements of the statute, and appellants were not entitled to cross-examine the maker of it as to its truth. The certified copy of the record showed that the deed was acknowledged by the wife before a notary public in the state of Ohio, and it was objected to for want of evidence of his official character. It was then offered as a deed of Jonathan Pettet alone, and it is insisted that this created a variance between the allegations of the bill and the proof. The averments of the bill were that appellee was the owner of the premises in fee simple, and was in possession and derived her title by a deed from Jonathan Pettet and wife. The description of the deed was superfluous, and there was no variance in any material matter. The evidence of possession was that when the bill was filed the premises were improved by a two-story frame house, which was in the possession of two persons, who were paying rent at $30 a month to appellee. They were her tenants, and their possession was her possession. The possession, in connection with the warranty deed, was sufficient to support the allegation of ownership for the purpose of removing a cloud from the title.

It is also contended that the court erred in requiring Emma J. Glos to pay one-third of the master's charges. Where a bill is filed to set aside a tax deed, it is a condition precedent to the relief that the complainant shall reimburse the holder of the deed for moneys expended, with interest thereon. If a complainant in such a case desires to place the owner of the tax title in the wrong, he must, before commencement of the suit, tender the whole amount paid at the tax sale, with subsequent taxes, costs, and interest, and keep such tender good by bringing the money into court; and if he fails to do so costs cannot be decreed against defendants. Gage v. Arndt, 121 Ill. 491, 13 N. E. 138;Mecartney v. Morse, 137 Ill. 481, 24 N. E. 576,26 N. E. 376;Cotes v. Rohrbeck, 139 Ill. 532, 28 N. E. 1110;Gage v. Goudy, 141 Ill. 215, 30 N. E. 320;Glos v. McKeown, 141 Ill. 288, 31 N. E. 314. The bill alleged that appellee had tendered to appellants all the money, taxes, and costs, with legal interest thereon, which they had expended, and that they had refused to accept the same. The bill also alleged that the appellee was ready and willing, and thereby offered, to pay them whatever equity might require. At the hearing it was proved that a tender had been made to Jacob Glos of $36.24, two-thrids of the amount necessary to entitle appellee to have the tax deed removed as a cloud. There had been no tender to Emma J. Glos; but at the first hearing before the master $21.12 was offered to her solicitor for one-third of the amount necessary to satisfy the claim for reimbursement, together with all the costs incurred by her up to that time. At the same time an offer was made to pay the amount previously tendered to Jacob Glos; but the moneys were not accepted, and were left with the master and brought into court. It is urged that the tender was insufficient to charge Emma J. Glos with costs, for the reason that she was not present, and that a solicitor had no authority, by virtue of his employment, to accept money in such a case. The cause was on hearing before the master, where Emma J. Glos appeared by her counsel, and we regard the offer to pay her the amount due at such hearing as sufficient. Ordinarily an attorney has a right, without proof of special authority, to receive and receipt for the amount due his client. Although it is necessary, in order that the costs of the suit may be decreed against the defendant, that a tender shall be made before the filing of the bill, it was held in Glos v. Stern, 213 Ill. 325, 72 N. E. 1057, that a refusal by a defendant to accept a tender of all that he is...