Glos v. Goodrich

• Decision Date: 15 October 1898
• Citation: 51 N.E. 643,175 Ill. 20
• Parties: GLOS v. GOODRICH.
• Court: Illinois Supreme Court

175 Ill. 20

51 N.E. 643

GLOS

v.GOODRICH.

Supreme Court of Illinois.

Oct. 15, 1898.

Appeal from Cook county court; M. F. Tuley, Judge.

Bill by Julia A. Goodrich against Jacob Glos. From a decree for complainant for a portion of the relief demanded, defendant appeals, and complainant assigns as cross error the dismissal of her bill in part. Reversed.

Enoch J. Price, for appellant.

James M. Cleaver, for appellee.

PHILLIPS, J.

Appellee filed a bill in chancery to set aside appellant's tax deed to the east one-hundredth part of lots 25 to 32, inclusive, and 42 to 45, inclusive, of block 1, in Lingle & Darlow's subdivision of blocks 11 and 12, in Hunter's subdivision of the N. W. 1/4 of section 31, township 38 N., range 13 E. of the third P. M., in Cook county. She alleged that she was the owner and in possession of lots 25 to 32, inclusive, and that she was formerly the owner of lots 46, 47, and 48, but prior to the filing of the bill conveyed them to the Baltimore & Ohio Connecting Railroad Company by warranty deed, and averred said company was in possession, and refused to complete payment for the said three lots until Glos' tax title was set aside. Appellant appeared and answered, denying the possession of the said property being in appellee, and set up his tax deed. On hearing, the court granted the prayer of the bill, and set aside the tax deed as to the lots named, except lots 46, 47, and 48, and awarded costs to the complainant. Appellant brings the record to this court, alleging as error there was no sufficient evidence of possession of the land in question, and that there was no valid tender of the proper amount which appellant was entitled to on his tax deed being set aside. Appellee assigned a cross error in dismissing her bill as to lots 46, 47, and 48.

The allegation of the bill is that the complainant is the owner in fee simple and in possession of certain lots, naming them. A bill to remove cloud from title must allege that the complainant is in possession, or that the property is vacant. Wetherell v. Eberle, 123 Ill. 666, 14 N. E. 675;Gage v. Abbott, 99 Ill. 366. This allegation is material, and the proof must show that the real estate is vacant and unoccupied, or in the possession of the complainant, except where it is sought to set aside a deed for fraud. Phillips v. Kesterson, 154 Ill. 572, 39 N. E. 599;Glos v. Randolph, 133 Ill. 197, 24 N. E. 426;Johnson v. Huling, 127 Ill. 14, 18 N. E. 786;Hardin v. Jones, 86 Ill. 313. The evidence shows this land, anterior to the time it came to the complainant, was being plowed by one who was a mere squatter, and between whom and the complainant there was no relation of landlord and tenant, neither had there been with any one in privity with her title. According to his testimony, this squatter was then in possession thereof. Complainant's agent never gave him any authority to enter into possession of the property, and did not know he was in possession. This is the only evidence that refers to the property, and it shows a possession in the squatter without his being a tenant of complainant, or privy to her title. The averment of the bill as to complainant's possession was not sustained by this proof, nor did it show the land was unoccupied.

Appellant insists that on a bill to set aside a tax deed he is entitled to receive all money paid by him at the tax sale, subsequent taxes paid, with interest at 6 per cent., and his costs in the proceeding, as a condition precedent to relief, unless a valid tender of the amount was made before bill filed, and kept good by payment of the money tendered into court. A court of equity is not bound by any rule requiring the complainant to bring money into court in a case in which he may, by a decree, be required to pay money, before a decree will be entered by the court. The money may be ordered into court at any time when the rights of the defendant require it, and the failure to produce it in court at the time of filing the bill, and constantly having it there, cannot be permitted to defeat the ends of justice, and prevent the rendition of a decree. Webster v. French, 11 Ill. 254;Anderson v. White, 27 Ill 57;Board of Sup'rs v. Henneberry, 41 Ill. 179;Dwen v. Blake, 44 Ill. 135. A bill, under the practice in chancery, may be sufficient by offering to bring the money into court, and abide by the order of the court as to its payment. As a basis of equitable relief, an actual tender, and the bringing of money into court, and depositing the same subject to the order of the court, or an averment made in the bill of a readiness and willingness to bring the money into court and pay the same on the order of the court, must be shown to authorize relief such as is asked in this bill. Gage v. Arndt, 121 Ill. 491, 13 N. E. 138. The appellee in this case offers to pay any amount found due, and this is sufficient as an averment of tender in that regard.

Before one holding a tax deed can have a decree against him for costs, he must be placed in the position of having refused to do equity. The evidence shows that the attorney for the complainant called upon Jacob Glos, and offered to pay him the...