Thomas v. Durchslag

• Decision Date: 27 November 1951
• Docket Number: No. 32014,32014
• Citation: 410 Ill. 363,102 N.E.2d 114
• Parties: THOMAS v. DURCHSLAG.
• Court: Illinois Supreme Court

Page 114

102 N.E.2d 114

410 Ill. 363

THOMAS v. DURCHSLAG.

No. 32014.

Supreme Court of Illinois.

Nov. 27, 1951.

Weightstill Woods, of Chicago, for appellant.

Braden, Hall, Barnes & Moss, of Chicago, (Zedrick T. Braden, Chicago, of counsel), for appellee.

SCHAEFER, Justice.

This appeal is a sequel to Thomas v. Durchslag, 404 Ill. 581, 90 N.E.2d 200. The plaintiff, Thomas, brought an action in the superior court of Cook County against the defendant, Durchslag, to remove a cloud upon his title to a lot in the city of Evanston. Thomas claimed to have been the owner of the record title and in possession since 1925. Durchslag based his claim of ownership upon a tax deed of 1928 and adverse possession. A decree was entered finding that all issues had been proved and established for Thomas and against Durchslag and other parties defendant. The cloud declared to exist on Thomas's title was removed, and it was adjudged that he had been vested with the exclusive title in fee to the lot since August, 1925. Upon appeal by Durchslag, this court said, 'Thomas, prior to the filing of his complaint and at no time thereafter, ever paid or offered to pay Durchslag the amount due him by reason of his paying taxes, interest and costs. Costs are chargeable against the holder of a void tax deed in a successful suit to remove that deed as a cloud on title of plaintiff, but where the latter makes no tender of reimbursement for the taxes, interest and costs paid before the filing of the complaint, it is error on setting aside the deed to require the holder of the tax deed to pay the costs.' Affirming the decree of the superior court, in part, and reversing it in part, and remanding the cause, with directions, this court said, 'Clearly, the findings of fact made by the chancellor are true and not against the manifest weight of the evidence. In all respects the decree is confirmed, except for the erroneous failure of the chancellor to decree reimbursement of Durchslag, by Thomas, for all the taxes, interest and costs properly paid out by the former, and except for the erroneous assessment of the costs against Durchslag. As to these matters, the decree of the superior court of Cook County is reversed and remanded with the direction to enter a decree which conforms with this opinion.'

The mandate of this court, issued in due course, concluded 'Therefore it is considered that * * * this cause be remanded * * * with directions to enter a decree which conforms with the opinion attached to this mandate.' Upon the remandment, plaintiff sought to contest defendant's right to reimbursement. The trial judge proceeded upon the assumption that nothing remained to be doen except to hear the evidence relative to the taxes paid and the costs incurred. Evidence was adduced showing that taxes, together with interest, amounted to $727.11, and three cost bills to $147.10. was entered modifying the decree previously entered by striking the part assessing costs against Durchslag and finding that the latter was to be reimbursed by Thomas in the sum of $874.21 for taxes, interest and costs properly paid out by Durchslag on the property made the subject of litigation. Accordingly, judgment was entered...