Lomax v. Gindele

Mr. Chief Justice Mulkey delivered the opinion of the Court: On the 25th of April, 1870, John Atkinson, being the owner of the land involved in this litigation, conveyed, by quitclaim deed, an undivided half thereof, to Edwin Walker. On the 20th of June, 1881, Lewis Ellsworth, Jr., purchased the entire tract at a tax sale. On the 20th of October, 1882, John H. Lomax, at an execution sale by the United States marshal for the Northern District of Illinois, purchased Walker’s interest in the premises, for which he subsequently, on the 23d of January, 1884, received a marshal’s deed. On the 21st of June, 1883, the county clerk executed to Ellsworth, Jr., a tax deed, who, on the same day, quitclaimed his interest in the premises to Lomax. Atkinson, on the 26th of June, 1884, conveyed, by warranty deed, his undivided half in the premises to A. E. Guild, Jr., who, on the 30th of January, 1885, conveyed the same to appellee, George A. Gindele. It also appears that, for the consideration of about $15, paid by appellant to Ells-worth, the two, some time before the time for redeeming the premises from the tax sale had expired, entered into a contract, by the terms of which the latter was to be permitted to take out a tax deed, as though no redemption had taken place, and then convey the premises to appellant, which agreement, as already seen, was fully performed. This transaction, in legal effect, amounted simply to a redemption of the premises from the tax sale. Under this state of facts the appellee filed the present bill against Lomax, asking to redeem from said tax sale upon payment by him of his share of the redemption money, and also to compel Lomax to quitclaim to complainant one undivided half of the land. There was a decree in accordance with the prayer of the bill, and the present appeal is from that decree. The form of the decree may be objectionable, yet we have no doubt that appellee is entitled to the relief intended to be granted, namely, the establishment of his right to an undivided half of the land, unaffected by the tax sale, and all conveyances made in pursuance thereof or which are dependent thereon. By Lomax’s purchase at the marshal’s sale, he became the owner of Walker’s undivided half of the land, subject to the right of redemption from the marshal’s sale, through which he claimed. By reason of his purchase, the law conferred on him, as tenant in common with Atkinson, the right to redeem the entire premises from the maturing tax title,—the time of redemption having yet some eight months to run; yet the same law which conferred upon him this right to redeem Atkinson’s interest, as well as his own, annexed to it the qualification that the redemption, when so made, should inure to the benefit of Atkinson also, on condition that he, or those claiming through him, would pay to Lomax one-half of the cost of redemption. The money thus advanced for Atkinson in making the redemption became an incumbrance or charge upon his interest in the land in favor of Lomax, which appellee, as a purchaser from Atkinson’s grantee, has a clear and undoubted right to pay off and discharge. As the view here taken is fully sustained by the previous decisions of- this court, further discussion of the subject is deemed unnecessary. C bickering v. Faile, 38 111. 342; Mc-Connel v. Konepel, 46 id. 519; Busch v. Huston, 75 id. 343; Brackens. Cooper, 80 id. 221; Lewis v. Ward, 99 id. 525; Hinkley v. Greene, 52 id. 223. Assuming the law to be as stated, what we have already said is a sufficient answer to all the points raised in appellant’s argument, except the last, which goes rather to the form than the substance of the decree. The point, as. stated by counsel, is thus made: “If the court should hold the act of appellant in acquiring a tax title to the premises amounts simply to a payment of the taxes, and that appellee is entitled to redeem, then, of course, appellant has no title to the property in question, except the title to an undivided half, which he acquired by virtue of the marshal’s sale and deed, and this title, the court decrees, must be conveyed to appellee.” The court below doubtless proceeded upon the theory that inasmuch as the tax proceeding appears to have been regular, and no improper conduct or bad faith is imputed to any of the officers of the law connected with it, the tax deed of the county clerk had the effect to pass the legal title to Ellsworth, but that by reason of the fraud which appellant was attempting to practice upon Atkinson, to which Ellsworth himself was a party, the law raised a constructive trust in Atkinson’s favor, to the extent of his interest in the land. Assuming such a trust to have been raised, it could only be upon the theory that the acquiring of the title in the manner stated was, as to Atkinson and those claiming under him, to be treated, in equity, as a redemption, merely, from the tax sale. Taking this view of the matter, there was certainly no inconsistency in directing a conveyance to appellee of one undivided half of the land, as is done by the decree, and if the theory suggested is the correct one, the decree was entirely proper. Certainly, precedents are not wanting where similar decrees have been rendered in cases much like the present. As the objection, however, may be removed altogether by a slight change of the language of the decree, it will be so modified in this court, which will obviate the necessity of determining definitely whether the decree, as rendered, is technically correct or not. An order will, therefore, be entered in this court, so modifying the decree of the court below as to require appellant to convey and quitclaim to appellee one undivided half of any and all interest he may have acquired to the land in question through said tax deed and the conveyance from Ellsworth to himself. . With this modification, the decree is affirmed. Decree affirmed.