St. George v. Bender

• Decision Date: 04 February 1931
• Docket Number: No. 20052.,20052.
• Citation: 342 Ill. 296,174 N.E. 406
• Parties: ST. GEORGE v. BENDER et al.
• Court: Illinois Supreme Court

342 Ill. 296

174 N.E. 406

ST. GEORGE

v.BENDER et al.

No. 20052.

Supreme Court of Illinois.

Dec. 18, 1930.

As Modified on Denial of Rehearing Feb. 4, 1931.

Commissioner's Opinion.

Suit by Maximilian J. St. George against Elizabeth Bender, the Elmhurst State Bank, trustee, and others. Decree for complainant, and defendants bank and others appeal.

Affirmed.Appeal from Circuit Court, Cook County; Hugo M. Friend, judge.

John R. O'Connor, Alben F. Bates, and Stephen D. Monahan, all of Chicago, for appellants.

Maximilian J. St. George, or Chicago, pro se.

EDMUNDS, C.

On October 5, 1928, Maximilian J. St. George, appellee, filed his bill in the circuit court of Cook county praying for partition of certain premises and the setting aside of outstanding tax deeds as clouds upon the title thereof. After a hearing by the chancellor a decree was entered in accordance with the prayer of the bill. This appeal by the Elmhurst State Bank, Lucy M. Glos, and others, who were made defendants, followed.

The bill alleges, among other things, that appellee and Elizabeth Bender are the owners in fee of lots 8, 9, and 28 in a certain described subdivision in Cook county, Ill.; that appellee's title to the lots was derives by quitclaim deeds from the city of Chicago on or about November 29, 1919, the city of Chicago having derived its title under certain tax deeds; that as soon as appellee received the quitclaim deeds from the city of Chicago he took possession of the lots, causing a fence to be built around them; that the lots were purchased for the purpose of constructing a coal and building-material yard; that at said time he caused to be moved to the lot immediately adjoining lots 8 and 9 a building to be used as an office building in the conduct of the business; that he caused cinders to be put on lot 28 and had lots 8 and 9 dug up for the purpose of putting a scale therein; that he had ‘For rent’ signs placed upon the lots, and these signs have remained thereon to the present date; that on March 15, 1927, he leased the lots to the General Outdoor Advertising Company for a period of five years, and said company is now in possession as appellee's tenant and has constructed a large sign across the lots; that appellee has paid taxes, forfeitures, and special assessments on the lots from 1919 to 1927, setting them out in detail; that on February 21, 1921, appellee and his wife transferred the lots to Mayme E. Phillips for the purpose of having her transfer the lots to the Advance Forging & Tool Works, a corporation, and she did on April 28, 1921, transfer title to said corporation; that the purpose of these deeds was to enable the corporation to erect a drop forge plant upon the lots; that because of inability to secure certain consents this attempt was abandoned and the lots were on November 3, 1922, by warranty deed from the corporation, transferred to appellee; and that on May 19, 1927, for valuable consideration, appellee and his wife quitclaimed to Elizabeth Bender an undivided one-half interest in the lots. The bill further alleges that the Elmhurst State Bank, as trustee under trust No. 29, derived under tax deeds to Jacob Glos and Parker E. Baird, holds a tax title to lot 28, and that Lucy M. Glos, as widow of Henry Glos, holds a tax title to lots 8 and 9; that for the purpose of avoiding the expense of litigation appellee offered to pay Mrs. Glos and the Elmhurst State Bank whatever money was equitably found due them by the county clerk of Cook county; that they have demanded a sum in excess of that which is just and equitable, but that appellee still offers to do equity to Mrs. Glos and the Elmhurst State Bank as to the court may seem just and meet. The bill then alleges that by virtue of the foregoing, appellee and Elizabeth Bender are seized in fee simple of the lots to the exclusion of all others, makes Mrs. Glos, the Elmhurst State Bank, and all others asserting claim to the premises parties defendant, and prays partition and that ‘the outstanding tax deeds running to the said Lucy M. Glos and the Elmhurst State Bank’ be set aside as a cloud on title, and ‘that all said deeds' may be canceled, concluding with a prayer for general relief.

Certain of the defendants were defaulted and separate answers were filed by the others. In each of these answers it is denied that appellee is the owner of the lots, and it is alleged that the party making answer is the owner of the premises described. The answer of the Elmhurst State Bank alleges that: ‘It is the holder of the legal title in and to the said premises by virtue of certain tax deeds and conveyances heretofore described in complainant's bill of complaint, as trustee for the defendants Emma J. Glos, Clara G. Bates, Mabelle L. Glos and Albert H. Glos, and denies that the said tax deeds are invalid for any reason whatsoever. This defendant denies that its title to the said premisesis invalid for any reason whatsoever, and denies that there is any reason why the said tax deeds should be set aside and declared null and void or delivered up or canceledby the court.’ The answer of Lucy M. Glos alleges that: ‘She is the holder of a legal title in and to the said premises by virtue of one certain tax deed to Henry L. Glos, [describing the deed as set forth in appellee's bill of complaint,] which said title became the property of this defendant upon the death of her husband, Henry L. Glos, and this defendant denies that the said title or the said tax deed is invalid for any reason whatsoever.’

The decree finds, among other things, that the court has jurisdiction of the parties and the subject matter; that prior to the filing of the bill complainant tendered to the Elmhurst State Bank and Lucy M. Glos whatever money was equitably found due them by the county clerk of Cook county under and by virtue of their outstanding tax titles, and renewed such tender before the hearing, but these tenders were refused, and that appellee and Elizabeth Bender are each the owner of an undivided one-half of the premises described. It orders that all outstanding tax titles in the property held by the Elmhurst State Bank and Mrs. Glos be set aside and declared null and void. It further orders partition of the premises, and that the costs, amounting to $75,87, be paid by Mrs. Glos and the Elmhurst State Bank.

Appellants contend that the finding of the chancellor that prior to the filing of the bill appellee tendered to the bank and Lucy M. Glos whatever money was equitably found due them is without warrant, that no valid tender was made to either, and that the chancelor therefore erred in decreeing that the bank and Mrs. Glos pay the costs. In support of this contention appellants cite a considerable number of authorities tending to hold that a valid tender presupposes an act performed by the debtor in the course of which the exact sum due is manually offered to the creditor without the annexation of any terms or conditions, and it is insisted that the record in the present case contains no showing that these several requirements were complied with in anything that was done either before or after filing the bill. Howeversound these authorities may be as applied elsewhere, they cannot be held decisive in this proceeding. In Hunter v. Daniel, 4 Hare, 420, it was said: ‘The only remaining point insisted upon was that the making of every payment was a condition precedent to the right of the plaintiff to call for the execution of the agreement, or, in fact, to call for the benefit of it, and it was argued that the bill could not properly be filed before the plaintiff had, out of court, fully performed his agreement. The general rule in equity certainly is not of that strict character. A party filing a bill submits to do everything that is required of him; and the practice of the court is not to require the party to make a formal tender where, as in this case, from the facts stated in the bill or from the evidence it appears that the tender would have been a mere form and that the party to whom it was made would have refused to accept the money.’ The position of this court on the subject of tender was expressed at an early date in Webster v. French, 11 Ill. 254, where Justice Caton said: ‘The result of my examination of this subject clearly shows that the Court of Chancery is not bound down by any fixed rule on this subject, by which is will allow the substantial ends of justice to be perverted or...