Wisner v. Chamberlin

Mr. Justice Sheldon delivered the opinion of the Court: The opening paragraph of the brief of counsel for plaintiffs in error is as follows: “As no questions were raised on the trial but such as called for a decision on the sufficiency of the foreclosure of the Embree mortgage, and of the tax title, it will not be necessary to discuss any other, excepting, perhaps, laches and possessory titles.” The inquiry before us, then, is quite limited, and hardly even reaches to the extent of the sufficiency of the foreclosure of the Embree mortgage, as that matter was before us on a former occasion, in the case of Gibbons v. Hoag, 95 Ill. 45, where we passed upon the question of the validity of the sale and deed made by Joseph W. Wiltberger to Egbert W. Wiltberger under the power of sale in the mortgage from Jesse Embree, and of the deed from Egbert W. to Joseph W., and decided that they were valid, and made the better title as between' a subsequent purchaser from Joseph W. Wiltberger, in 1863, and one under Embree, in 1869. That was a like proceeding as the present, under the .Burnt Records act, for the establishment of title in the petitioner there, who claimed’under Wiltberger. We are entirely satisfied with the conclusion reached in that ease, and think it must be held decisive upon this point, unless there are different facts shown in this record which should vary the decision. We do not understand counsel as claiming otherwise, but it is insisted there are additional facts presented in this case, which should cause a different determination. Such additional facts are, a stipulation in this case that the $2400 notes, secured by the Embree mortgage, were given for the interest upon the principal sum of $48,000, which was represented by the $48,000 note secured by said Embree mortgage. It is said it was assumed in the former case that the eighteen $2400 notes were principal notes, and that the foreclosure was only for those of the $2400 notes then due, whereas it was for the $48,000 note as well; that as it now appears the smaller notes were for interest only, no interest could be declared due, unless it was then earned; that the $48,000 note could not be made due until the title of the minors to one-fourth of the land had been secured to Embree; and that so a want of power, under the mortgage, to make the sale that was made, is apparent. The mortgage describes all the notes alike, saying nothing of the $2400 notes being" for interest. The deed from Wiltberger to Embree showed a consideration of $94,550. It •would seem that third parties purchasing under the Wiltberger title, might well rely upon the representations made in these instruments, as against Embree and those claiming under him, and have the right to regard the $2400 notes as principal notes. However it might be with strictly interest notes, that no interest-could be declared due unless it was then earned, we do not regard these smaller notes as being for interest, properly, but as really installments of purchase money for property bought on a credit. The property, as would appear from all the facts in evidence, was bought November 18, 1858, on a credit of .$48,000, payable January 1, 1868, and two payments, of $2400 each, on January 1 of each intervening year. The smaller notes represented the difference between a cash sale for $48,000 and a credit sale on the time given, calculating the difference on the basis of ten per cent interest on the $48,000, and calling the latter principal, and the smaller notes interest, did not alter the esse'n.tial character of the transaction. All the notes represented purchase money for land sold on a credit, and on default in payment, for the time specified, of any of the smaller notes, we think, under the mortgage, all the smaller notes might be declared to be due. The lot in question is situated in the north half of the north half of the north-west quarter of section 15, and at the mortgagee’s sale that forty acres was first sold for $16,000. There were eighteen of the $2400 notes, and if there ivas right, as we find, to declare them all due, their aggregate amount was sufficient to authorize the sale, not only of the forty, but of the whole one hundred and twenty acres. There was no necessity, then, to declare the $48,000 note due, or that it should be due, to warrant the sale. Reference is made to Jones on Mortgages, section 1178, in support of the proposition that when the principal of a mortgage debt can not be declared due for non-payment of interest, there can be no foreclosure for such non-payment. That rule surely can not apply in such a case as this, where the so-called principal note is given, with other notes, in consideration of land conveyed, and may not be declared due because of its being made a condition of its payment that an outstanding title to one-fourth of the land shall first be gotten in for the benefit of the mortgagor, a title to the other three-fourths being conveyed, and the other notes not being subject to such condition, but payable absolutely, and there being an express covenant of the mortgagor that the other notes may all be declared due upon default of payment of any one of them for a certain time after becoming due. It is insisted, that the possession of the north one hundred and thirty-four feet of the property in question, by the South Park commissioners, from 1870 to 1882, under the deed thereof from Rees, makes good title in the park commissioners, under the- seven years’ limitation law. It is seven years’ possession under color of title, accompanied with the payment of taxes, which bars title under the Limitation act. There was here no payment of taxes on the land during the seven years. But being park property, and as such exempt from taxation, it is claimed that such exemption is equivalent to payment of taxes. We do not so think. If the land was exempt from taxation, and so there were no taxes to pay, then this Limitation act could not be made to apply here. Seven years’ possession, under color of title, without payment of taxes, will not bring a case within the act. Wisner’s tax title claim was under a quitclaim deed from P. E. Stanley, the holder of a tax deed, made to him as assignee of two tax sale certificates, under two tax sales, one for the seventh installment of the South Park assessment, made September 3, 1879, of the east half of lot 8, for $25.49, to the South Park commissioners, and the other for the State and county taxes of 1878, of “ex. parkway, E. J lot 8,” for $25.16, September 8,1879, to D. G. Hamilton. It is sufficient for the defeat of the claim of title under the last named sale for State and county taxes, that the notice of the sale required to be served upon the persons in possession of the property sold, did not truly state when the time of redemption, would expire. The time of redemption would expire September 8, 1881,—the notice stated that it would expire on October 18, 1881. 'It was held in Wilson v. McKenna, 52 Ill. 43, and Gage v. Bailey, 100 id. 530, that the misstatement in the notice of the expiration of the time of redemption, would render invalid the tax deed. Section 216 of the -Revenue law makes'it a condition that before the purchaser at a tax sale shall receive a deed, he shall serve, or cause to be served, a written notice on every person in possession of the land or lots sold, three m'onths before the expiration of the time of redemption, in which notice he shall state, among other .things, when he purchased the land or lot, and when the time of redemption will expire; and there is the further provision, that the purchaser must, before he shall be entitled to a deed, make an affidavit of having complied with such condition, stating particularly the facts relied on as showing such compliance, the affidavit to be delivered to the person authorized by law to make'the deed, to be filed and entered of record in the proper office. These requirements were held, in the ease first above cited, to be conditions precedent to the right to have a deed. In answer to the eases cited, it is said that in both the cases the date given as the expiration of the time for redemption was earlier than that allowed by the statute, and it is supposed that must have been the reason for the holding, but that in the present case the date named as the expiration of the time of redemption was later than that fixed by the statute, giving the owner the full statutory time and over a month more, for redemption, so that no one was injured or misled. It is insisted that this distinction between the cases calls for a contrary decision here. We do not regard it as matter for inquiry whether or not there has been the misleading or injury of any one from wrongly stating in the notice when the time of redemption will expire. The title to be made under a tax deed is one stricti juris, and we need look no further, where there has been non-compliance with what the law makes a condition precedent to the right to have a tax deed. 'We find there was such a non-compliance here, in not stating in the notice the right time of the expiration of the right of redemption, and that that of itself avoids the tax deed. We attach no importance to the distinction in the wrong date of the expiration of the time of redemption, as being earlier or later than that allowed by the statute. As to the tax deed under the sale for the seventh installment of the South Park assessment, we deem it a sufficient objection to the validity of that deed that the affidavit of service of notice of the purchase for taxes, etc., fails of showing compliance with the prerequisite condition of service of the notice upon the person or persons in the actual possession or occupancy of the lot at the time of such service. The affidavit in this respect is, that the lot described in the notice ■was, on the 19th day of April, 1881, in the actual possession of the South Park commissioners, and that a copy of the notice was delivered to the South Park commissioners May 20, 1881. The affidavit does not state who was in possession on the last named day. Since the 19th of April preceding, the possession may have changed, and the affidavit should have shown service Of the notice upon the person or persons in actual possession at the time the notice was served. It is not sufficient, as is urged, that other evidence in the case shows the park commissioners were in possession at that time. The statute is express, that the purchaser, or his assignee, by himself or agent, shall make an affidavit of having complied with the provisions of the section, stating particularly the facts relied on as showing such compliance, before he shall, be entitled to a deed. Such affidavit was not made, and the purchaser had no right to a deed. We can not go so far to sustain a tax title as to dispense with á condition precedent to it. We find no foundation in the facts of the case for any imputation of laches to the defendant in error which should affect her title to relief. The decree of the circuit court should be affirmed. Decree affirmed. Mr. Justice Scott : I do not concur in this opinion.