Gage v. Lightburn

Mr. Justice Scott delivered the opinion of the Court: This was a proceeding commenced either by bill in equity or by petition to partition certain lots among parties alleged to be the owners in fee. It is alleged the county clerk of'the county in which the lots are situated executed and delivered to defendant, Gage, a tax deed for the lots described; that defendant has no other claim to such property, and that the tax deed is void. It is said a portion of the tax for which the property was sold was void, for the reason the certificate of the school directors under which the same was levied was not such a certificate as is required by law, and was not filed in time; that the deed issued to defendant was without authority of law, setting out copies of the affidavit upon which the deed was issued, and the notice given, and hence it is alleged defendant had no title to the property adverse to that of petitioners. The court found that petitioners and one Caldwell were the owners of the property, and that defendant Gage’s grantor had purchased the property at tax sale, and had paid certain moneys which had not been refunded, and that defendant was equitably entitled to receive from the owners the sums so paid, with interest. On appeal to the Appellate Court that decree was affirmed, and defendant, Gage, brings the case to this court. The first position taken is, that the circuit court, in a partition proceeding, has no jurisdiction to investigate and determine what is termed the adverse title of defendant, Gage, to the property in question. This we think is a misapprehension of our statute on this subject. Section 39, ch. 106, provides that “in all suits for partition of real estate, whether by bill in chancery or by petition, the court may investigate and determine all questions of conflicting or controverted titles, and remove clouds upon the titles to any of the premises sought to be partitioned.” It will be perceived it makes no difference whether this proceeding was commenced by bill or by petition. In either case the statute confers jurisdiction upon the court to investigate and determine conflicting titles to the property. The case of Henrichsen v. Hodgen, 67 Ill. 179, was for the partition of lands, commenced by bill. It was objected that Henrichson being in possession, the proper remedy as to him was at law by an action of ejectment; but it was held the court having obtained jurisdiction of the case, for the purpose of partition, might do complete justice between the parties and dispose of the whole question of title between them, and thus save the necessity of a resort to an additional suit. That case gave construction to the statute cited, and must be regarded as conclusive as to the objection to the jurisdiction of the court in the case at bar. Before the tax deed to defendant, Gage, could become evidence of paramount title to the property in him, it must be shown it was founded on a valid judgment. No judgment for taxes against the property is shown, nor any precept authorizing the sale. Unless a judgment for taxes against the property, and precept are shown, the tax deed will not divest absolutely the title of the former owners, and it will not be necessary to discuss the objections taken to a portion of the taxes for which the property was sold, nor whether the purchaser complied with the statute as to giving notice before taking out a tax deed. The judgment will be affirmed. Judgment affirmed.