Miller v. Cook

• Decision Date: 05 November 1890
• Citation: 25 N.E. 756,135 Ill. 190
• Parties: MILLER v. COOK et al.
• Court: Illinois Supreme Court

135 Ill. 190

25 N.E. 756

MILLER

v.COOK et al.¹

Supreme Court of Illinois.

Nov. 5, 1890.

Appeal from appellate court, fourth district.

C. H. Patton and Chas. P. Knispel, for appellant.

C. H. Burton, for appellees.

On July 15, 1885, Miller filed his bill against Cook and Tanner, alleging complainant had an interest in 160 3/4 feet off of the west end of lot 48, block 7, in Mt. Vernon, Ill., as mortgagee of D. C. Warren, by mortgage dated May 4, 1881, recorded May 6, 1881, given to secure $3,000, loaned to Warren, still due and owing to complainant. That he relies upon said real estate for security for the payment thereof, the value of said real estate being about $3,000. That, at the date of the mortgage, taxes were due, and liens upon said premises for the years 1875 to 1880, both inclusive, to the amount of $145.97, which were fully paid by Warren in 1881, and that Warren has paid the taxes for the years subsequent thereto; yet the collector failed to discharge the same of record, but allowed the same to remain an apparent charge upon said premises, and the same were carried forward from year to year against said premises, for the amount paid by Warren, and for the amount also of an illegal and unconstitutional tax assessed for county purposes, until the May term, 1883, of the Jefferson county court, when the collector obtained judgment against said premises for $228.56, which sum included the amount of taxes so paid by Warren, and the said illegal and unconstitutional tax, and also the legal taxes for 1881, and 1882, amounting, with legal penalties, interest, and costs, to $41.51, which latter sum was tendered to the collector before tax-sale. That thereafter, on June 8, 1883, the collector sold said premises to said Cook, for said sum of $228.56. All of which proceedings to obtain said judgment and make such sale were unknown to complainant, who made no appearance in said county court. That Cook was fully notified by Warren before the sale to him of the payment of taxes by Warren, and of the illegal character of the judgment, and that the same would be contested. The bill further alleged that notice had been served on complainant by Cook that he would take out a tax-deed for said premises under said sale; and that said Cook was about to apply for, and his co-defendant Tanner, county clerk of said county, was about to issue and deliver, a tax-deed therefor, and thus take away and destroy the interest of complainant in said premises, amounting to $3,000, and destroy the security of complainant for the payment of his debt. The bill offered to pay Cook or the collector, as the court should direct, all lawful taxes, penalties, interest, and costs, unpaid upon said premises, as well as all taxes thereon paid by Cook since his purchase, and prayed that an account be taken of the amount to be so paid, and for a perpetual injunction restraining Cook, his agents or assigns, from taking out a tax-deed for said premises, and restraining Tanner or his deputy from issuing any tax-deed for said premises to any person, and that said sale be declared void. There was also a prayer for general relief.

The answer of the defendants admitted the purchase of the premises by Cook; denied taxes had been paid at date of purchase as alleged, or that any unconstitutional tax was levied, or that Warren notified Cook as alleged; and averred that the mortgage to Miller included other valuable improved real estate in Mt. Vernon, worth $5,000, and afforded ample security for Miller's debt; that the lot sold to Cook is occupied, and Miller not in possession; that Miller is estopped from bringing said bill by a former adjudication of this case in the suit brought by D. C. Warren against Cook, decided at the May term, 1885, of the Jefferson circuit court and affirmed at the November term, 1885, of the supreme court; that this bill is, in fact, a second bill by Warren in the name of Miller, and that Miller is in no way interested in the present litigation, which is the same, in interest, with the former litigation between Warren and Cook in the said bill brought to said May term, 1885, of said circuit court which was there dismissed by the court, and that decision affirmed by the supreme court. The answer further averred that Miller was notified by Cook at the time and in the manner required by law of his intention to apply for a tax-deed, and when the time for redemption would expire, and that he, having failed to redeem from said tax-sale, was now estopped from so doing; and, further, that on April 28, 1886, Warren gave a mortgage for $3,000 on valuable farming land in said county to Miller to secure him against loss of security arising out of this litigation. Replication was filed, and the cause was heard on bill, answer, replication, and proofs, and a decree was entered that Miller first pay to Cook the sum of $100.25, and that thereupon the tax judgment and the certificate of purchase to Cook be null and void, and that the injunction restraining the execution, delivery, and receiving of a tax-deed be made perpetual, and that Cook pay the costs. Upon an appeal prosecuted by Cook to the appellate court of the fourth district, thia first decree was reversed, and the cause remanded. Cook v. Miller, 26 Ill. App. 421. Upon the remandment to the circuit court, and on June 9, 1888, Miller filed his amended bill alleging his interest in the lot in contoversy as mortgagee of Warren, as in his original bill; that the mortgage conveyed also four other lots of the value of $1,200; that the lot in controversy is worth $1,800, and Warren paid collector all taxes due thereon, including those for 1880, but the collector neglected to mark them off, and left them an apparent just charge against said lot, and the same was carried forward on the tax-book from year to year until 1883, and on May 29th of that year judgment for taxes against said lot was obtained, and on June 8, 1883, the lot was sold thereunder to Cook for $228; that, the time for redemption having expired, Cook is about to apply for tax-deed, and thereby cause irreparable injury to complainant, in taking away and destroying a large part of his mortgage security, said Warren being, as complainant is informed and believes, insolvent and unable to pay said debtor any considerable portion of it since its maturity; that foreclosure of said mortgage and sale of said property will have to be made; that said tax judgment, as against complainant, is illegal, in that it included said taxes paid by Warren, and an illegal and unconstitutional tax levied for county purposes; that Cook had notice thereof at and before the time he purchased; that the only amount legally due and unpaid for taxes, interest, and penalties on said lot at the time of sale was $41.51, which sum Warren tendered to the collector before the sale, and it was by him refused; that complainant is willing and able to pay whatever taxes, penalties, and costs may be lawfully and equitably due upon said premises to Cook or into court; that nearly $3,500 of the mortgage debt is due and unpaid to complainant, and the entire property mortgaged is not worth the amount of debt and interest; that, if Cook be allowed to take said lot, complainant will lose more than one-half of his said debt. Prays for taking an account of legal taxes, penalties, interests, and costs due and unpaid on said lot that ought in equity to be paid by complainant to Cook; that said tax judgment be declared void so far as it affects complainant's rights as mortgagee, or the title of any purchaser at a sale made under decree of foreclosure of said mortgage; that the temporary injunction heretofore granted be continued in force, and for general relief.

On the same day, Miller filed a supplemental bill alleging the filing of his original bill, answer thereto, and replication, hearing and decree for complainant as prayed, the reversal thereof by the appellate court, and remanding of the cause; that, since filing original bill, complainant has been compelled to foreclose said mortgage, and filed his bill for that purpose at December term, 1886, of said circuit court, and obtained a decree against Warren at that term for the payment of the mortgage debt, and in default of the payment thereof the mortgaged premises, including this lot, were by virtue of the decree, and on February 12, 1887, by the master in chancery, offered for sale in separate parcels, and, no bid being made, the same were then offered for sale in a body, and, no one bidding as much as the debt, interest, and costs, complainant was compelled to and did buy in all of said property, and received his certificate; that no one redeemed, and complainant received his deed from the master, and is in possession of, and has title to, all the said lots; that the illegal tax-sale and judgment cast a cloud on his said title to the lot in controversy. Prays said judgment and tax-sale be decreed wholly subject to the rights of complainant, and, so far as the same will have any effect as a shadow upon his title, the injunction be made perpetual, and any tax-deed to be issued upon said tax-sale be postponed to and be declared subject to complainant's rights in said lot, and defendants be restrained from asserting the same as agaisnt the rights of complainant, and for general relief.

Answers were filed to the amended and supplemental bills, and replications to such answers were interposed. The cause was then heard upon the pleadings and proofs, and a decree duly entered. This latter decree finds that Cook bought the lot at tax-sale on June 8, 1883; that said sale was made by virtue of judgment and order of sale of Jefferson county court, entered at its May term, 1883, for taxes, interest, penalties, and costs for the years 1875 to 1882, both inclusive, amounting to $228.56; that Warren was then the owner of said lot, and Miller was then interested therin as mortgagee of Warren, by virtue of a mortgage...