« PreviousContinue »
Opinion of the Court.
or special assessment. This notice did not afford that information.” In Stillwell v. Brammell, 124 Illinois, 338, 345, the notice was of a “sale of lands, town and city lots, made pursuant to law
for the delinquent taxes and special assessments levied for the year 1880.” The court held this notice to be materially defective, saying: “There is a difference between a tax and a special assessment. The notice above quoted fails to inform the land owner whether his property was sold for a tax or a special assessment. It was, therefore, defective under the ruling made in Gage v. Waterman, 121 Illinois, 115. The title to be made under a tax deed is one stricti juris."
So in Gage v. Davis, 129 Illinois, 236, 239, where one of the questions was as to the validity of a notice given by the assignee of a purchaser “at a sale of lots and lands for taxes and special assessments, authorized by the laws of the State of Illinois
said taxes and assessments were levied for the year 1872," etc., the court said: “The notice above quoted fails to state whether the lots were taxed or specially assessed. It does not inform the owner whether his lots were sold for a tax or special assessment. It merely tells him that his lots were sold at a general sale of lots and lands for taxes and special assessments levied for the year 1872. The words, said taxes and assessments were levied for the year 1872,' refer back to and define the sale at which the lots in question were sold, but such words cannot be construed to mean that the lots were sold on September 13, 1872, for both taxes and spe cial assessments.”
This view is not at all affected by section 224 of the above statute, declaring that deeds executed by the county clerk shall be prima facie evidence in all controversies and suits in relation to the right of the purchaser, his heirs or assigns, of the following facts: That the real estate conveyed was subject to taxation at the time it was assessed, and had been listed and assessed at the time and in the manner required by law; that the taxes or special assessments were not paid before the sale; that the estate conveyed had not been redeemed at the date of the deed, was advertised for sale in the manner and
Opinion of the Court.
for the length of time required, and sold for taxes or special assessments, as stated in the deed ; that the grantee was the purchaser or assignee of the purchaser; and that the sale was conducted in the manner required by law. It has been uniformly held, notwithstanding this section, that where a tax deed is reli ed on as evidence of paramount title, it is indispensable that it be supported by a valid judgment for the taxes and a proper precept authorizing the sale. Ilolbrook v. Dickinson, 46 Illinois, 285; Gage v. Lightburn, 93 Illinois, 248, 252; Pardridge v. Village of Hyde Park, 131 Illinois, 537, 511. So it must appear that the purchaser at the tax sale or his assignee made the affidavit required by section 217 as to the service of notice of the tax sale. Smith v. Ilutchinson, 108 Illinois, 662, 667; Gage v. Caraher, 125 Illinois, 447, 454. And when the notice is produced, the question is necessarily open as to whether it was such as section 216 prescribed, before the purchaser is entitled to a deed from the county clerk. The settled doctrine of the Supreme Court of Illinois is that a tax title is purely technical, and depends upon a strict compliance
Altes v. llinckler, 36 Illinois, 265, 267; Marsh v. Chesnut, 14 Illinois, 223 ; Charles v. Waugh, 35 Illinois, 315, 323; Wisner v. Chamberlin, 117 Illinois, 568, 580; Chappell v. Spire, 106 Illinois, 472, 475; Stillwell v. Brammell, 124 Illinois, 338, 345. It is as firmly settled that the giving of the particular notice required is an indispensable condition precedent to the right to make a deed to the purchaser or
Gage v. Bailey, 100 Illinois, 530, 536; Gage v. Schmidt, 104 Illinois, 106, 109; Gage v. llerrey, 111 Illinois, 305, 308; Gage v. Mayer, 117 Illinois, 632, 636.
As the notice of the sale of 1873 was not in conformity with the statute, Gage was not entitled to the deed of July 24, 1876, and it is void.
The first of the deeds held by Gage which is referred to in the bill is that of July 3, 1880. One of the contentions of the plainthe sale, that deed was issued without authority of law. The
even if there were a valid judgment and precept for county clerk issued it upon the showing made by the following papers: 1. A notice of the tax sale, dated Chicago, April
with the statute.
tiff is that,
Opinion of the Court.
21, 22 and 23, 1879, given by Asahel Gage, addressed “To the owners or parties interested in the following described lands and lots, and to the persons in whose names they were taxed or specially assessed, and to whom it may concern,” and published in the Chicago Daily Evening Journal on those days. That document gave notice of the purchase by Asahel Gage of the lots here in dispute, on the 8th day of August, 1877, at a sale “for taxes and special assessments authorized by and levied or assessed in compliance with the laws of the State of Illinois,” and “taxed or specially assessed for the year 1874 for the third instalment of special assessment number 36 of the town of Lake, and the time of redemption of said land or lots from said sale will expire on the 8th day of August, 1879." The fact of the publication of that notice is supported by the affidavit of the publisher of the paper referred to. 2. An affi davit of the agent and attorney of the purchaser, in which, after setting out the above notice and its publication in the newspaper, he states that “Asabel Gage served or caused to be served written or printed or partly written and partly printed notices of purchase at said tax sale, as in other affidavits hereto attached more fully set forth, on every person in actual possession or occupancy of such land or lots, and also the person in whose name the same were taxed or specially assessed, if upon diligent inquiry they could be found in said county, and a reasonable notice was given to the owners or parties interested in said land or lots at least three months before the expiration of the time of redemption on such sale, and that said notices stated when he purchased the land or lots, in whose names taxed, the description of the land or lots he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire. And this affiant says that he has compared the affidavits hereto attached with the original menoranda of service of the respective parties making the same, and that the same are correct according to the original memoranda of service as aforesaid.” This affidavit states, generally, that Asahel Gage caused a reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property described in the notice
Opinion of the Court.
attached for the taxes or assessments therein described, and when the time of redemption would expire, and complied with all the provisions of the constitution and laws of the State of Illinois to entitle him to a deed or deeds of conveyance. 3. Affidavit of Charles P. Westerfield, made July 15th, 1879, in which he describes himself, as agent of Asahel Gage, and states that on the 5th day of December, 1878, he served upon Peter Caldwell and Ann Caldwell, his wife, "by handing the same to and leaving the same with the said Ann Caldwell personally," a copy of the notice annexed to his affidavit; that "the persons so served were the only persons in actual possession or occupancy of said land or lots [the premises in dispute] at least three months before the expiration of the time of redemption;" and that said lands or lots were taxed or specially assessed in the name of "P. Caldwell and Peter Caldwell." 4. Affidavit of one Bunker, made July 15th, 1879, describing himself and stating that he, as agent of Gage, "on the dates mentioned in the foregoing affidavit, accompanied, was present with and witnessed Charles P. Westerfield, on the dates and at the several places as mentioned in the foregoing affidavit, serve the notices above mentioned on the persons mentioned in the above affidavit," and that "a copy of the annexed notice was served upon the said persons at the times, places and in the manner and form as stated above." 5. Affidavit of Charles P. Westerfield, made July 15, 1879, describing himself as agent of Asahel Gage, and stating that, as such agent, he served, April 4, 1879, upon Peter Caldwell, personally, a copy of the notice which was annexed. 6. Affidavit of U. George Taylor, in the precise words of Bunker's affidavit, except that Taylor states the service which he, as agent of Gage, witnessed, occurred on the 4th of April, 1879. 7. One of the notices, annexed to the above affidavits, was addressed: "To whom it may concern," stated the purchase by Gage, on the 8th day of August, 1877, "at a sale of lots and lands for taxes and special assessments authorized by the laws of the State of Illinois, taxed in the name of P. Caldwell," of the lots in controversy "taxed or specially assessed for the year 1874 for the third instalment of special assessment number 36
Opinion of the Court.
of the town of Lake, and that the time of redemption thereof from said sale will expire on the 8th day of August, 1879." The other notice differed from the first one only in stating that the lots and lands sold were taxed in the names of P. Caldwell and Peter Caldwell. S. Certificates of sale of the
8. two lots in dispute to Asahel Gage.
In considering whether the purchaser was entitled, upon the showing made by him, to the deed of July 3, 1880, we give no weight to the notice published in the newspaper. The right of the purchaser or his assignee to give notice, in that mode, of the tax sale, existed only when no person was in actual possession or occupancy of the property sold, and the person in whose name it was taxed or specially assessed could not, upon diligent inquiry, be found in the county — a condition of things which is not pretended to have existed after 1868 up to the execution of the deeds in question. Nor do we attach any value to the affidavit of Westerfield, made July 15, 1879, as to the service on the 5th of December, 1878, because that service was upon Peter Caldwell, by handing the notice to his wife; and that is not stated to have been done in the presence of the husband. The statute provides for service upon every person in actual possession or occupancy of the land, and also upon the persons in whose name it is taxed. If it be proper or necessary, under any circumstances, to serve notice of the sale upon the wife where the husband owns and occupies the land, and it is taxed in his name, no such circumstances are disclosed in the present case.
As to the notice which Westerfield claimed to have served on Caldwell, April 4, 1879, it is doubtful, under the decisions above cited, whether the obscurity arising from the words, in each notice, “taxes and special assessments” and “taxed or specially assessed,” is removed by the use of the words " for the third instalment of special assessment number 36 of the town of Lake.” But waiving that question, we are not prepared to hold that the decree is erroneous so far as it sustains the plaintiff's contention that there was in fact no service on Caldwell of notice of the tax sale and of Gage's purchase. Caldwell testifies that he was not at any time, to his know).