Gage v. Mayer

Mr. Justice Ceaig delivered the opinion of the Court: This was a bill brought by Jacob Mayer, in the circuit court of Cook county, against Henry H. Gage, to set aside a tax deed issued to Gage on the 26th day of March, 1880, purporting to convey certain lots situated in the town of Lake, in Cook county, which had been sold for the non-payment of taxes, on the 27th day of August, 1877. As to the validity of the deed, but one question need be considered, as we regard that conclusive. Section 216, chapter 120, of the Revised Statutes of 1874, provides : “Hereafter no purchaser = * * *' at any sale of lands * * * for taxes * * * shall be entitled to a deed * * * until the following conditions have been complied with, to-wit: Such purchaser shall serve * "* * notice of such purchase on every person in * * *■ possession * * * of such land, * * * and also the person in whose name the same was taxed, * * * if * * * he can be found in the county. ” Section 217 provides, that the purchaser shall make an affidavit, stating particularly the facts relied upon as compliance with section 216, supra, before he shall be entitled to a deed. Under section 216, no person is entitled to a deed, and no deed can lawfully be issued, unless the notice specified in the section has been given. Section 217 is equally imperative, that the purchaser, before he shall be entitled to a deed, shall make an affidavit showing a compliance with the section of the statute. The affidavit is required to be filed with the county clerk, whose duty it is to enter it upon the records of his office. The affidavit relied upon as showing a compliance with the statute, was made by the agent of the purchaser at the tax sale, and states that he visited the property December 6, 1878, to serve the occupant with a notice, and there was no person in possession of the same, but the property was vacant and unoccupied; that the property was taxed in the name of W. H. Rice and I. Mayer, and he served a notice, of which the annexed is a true copy, on W. H. Rice and I. Mayer,'by handing the same to, and leaving the same with, W. H. Rice, personally, at No. 188 Washington street, and J. Mayer, personally, at Howland block, Chicago, in said county, both on March 19, 1879. From this affidavit, it appears that the lots were assessed in the names of two persons, W. H. Rice and I. Mayer, but the notice was served on W. H. Rice and J. Mayer. So far as I. Mayer is concerned, it does not appear, from the affidavit, that he was served with any notice whatever. Had the affidavit shown that I. Mayer and J. Mayer were one and the same person, or that there was no such person as I. Mayer, and the assessment in his name was a clerical error, intended for J. Mayer, who was the real owner of the land when assessed, it might have been a sufficient compliance with the statute to authorize the execution of the tax deed. This, however, does not appear from the affidavit, and we perceive no ground upon which the affidavit can be held sufficient, unless we can say that a service on J. Mayer was a service on I. Mayer,— in other words, that J. Mayer and I. Mayer are idem sonans. In support of this view, it is said, in the argument: “The initials I and J are not to be taken as mere initials, but as abbreviations for the name Jacob, for which they stand. If the word had been fully spelled out, ‘Iacob,’ it could not have been successfully contended that this was not ‘Jacob.’ In contemplation of law the two eases are identical.” We are willing to concede, that Jacob and Iacob may be regarded as one and the same name. Where the letter I is placed before “acob,” any person would see, without a moment’s reflection, that it was intended for the letter J; but upon what theory can it be said that the letter J stands for Jacob? It may as well stand for John, or James, or any other given name which commences with that letter. So, also, I may stand for Isaac, Ion, or any other given name which commences with that letter. The use of either of the letters would not in the least indicate that they were intended as an abbreviation of the ■word Jacob. It may be, as claimed in the argument, that I was formerly used in words where J is now written, but we do not think it is so used at the present time. At all events, we are satisfied that there is no authority for holding that I. Mayer and J. Mayer are to be regarded as one and the same person, and leaving a notice with J. Mayer was not a service on I. Mayer, the person in whose name the property was taxed. Gage, v. Hervey, 111 Ill. 308, may be regarded as an authority on the question. We have not remarked upon the evidence introduced on the trial, tending to prove that I. Mayer and J. Mayer was one and the same person, as we did not regard such evidence competent in' the case. The execution of the deed rests entirely upon the sufficiency of the affidavit filed with the clerk, upon which it issued. Parol evidence can not be introduced to supply defects or omissions in the affidavit. The statute only authorizes a deed to be executed, upon an affidavit being filed which contains certain specified facts. If the affidavit does not contain the specified facts, the deed is unauthorized and nugatory, regardless of what the real facts may be, or what may be proved. . Pond v. Ennis, 69 Ill. 341, has been cited as an authority on the sufficiency of the notice. In the case cited, a defendant, in a proceeding to foreclose a mortgage, was served bj^ a wrong name, and it was held, that the party was bound to plead the misnomer, and on failure to do so, was bound by the decree rendered in the cause. There is no doubt in regard to the rule laid down in the ease cited, but that was a proceeding in court, and it has no bearing on the validity of the steps required to be taken under the Revenue law. to make a tax title to real estate. The validity of a tax title, as has often been held by this court, depends upon a strict compliance with the statute. It appears from the record, that appellant had purchased the lots in question for taxes at sales prior to the one involved in this proceeding, and the master, in computing the amount complainant should pay, included amounts which appellant had paid on and under those sales, and it is urged that the court erred in requiring appellee to pay appellant for tax titles not in issue under the bill. The fact that appellee may be required to pay too large an amount, can not injure appellant, and if not injured, there can be no just ground of complaint. The validity of the sales made prior to 1877 was not involved in this bill, and if the appellant should be of opinion that an acceptance of the money decreed to be paid by appellee, which had been paid out by appellant, on or under such sales, would have any bearing upon such sales, he can leave that amount in the hands of the person with whom it has been deposited, and take the balance of the money paid under the decree. The appellant filed a cross-bill, in which he alleged that he was the owner of the land in fee simple, under four distinct sources of title: First, under a deed from Herman Lieb, county clerk, dated February 10, 1877; second, under a deed from the same party, dated March 28, 1877; third, under a deed from E. T. 0. Klokke, county clerk, dated March 26, 1880; and fourth, under a deed from same party, dated July 2,1880. The complainant interposed a demurrer to the cross-bill, which the court sustained, for the reason that it failed to show any ground for equitable relief; that the cross-bill set up a legal title in appellant, and that his remedy was at law. It may be regarded as a well settled principle, that a court of equity is not the proper tribunal for the trial of legal titles to real estate. An action of ejectment, in a court of law, must be resorted to where the parties desire to contest the validity of conflicting titles. An action of ejectment can not be tried, in a court of equity, by bill or cross-bill. (Parker v. Shannon, 114 Ill. 192.) From an inspection of the cross-bill, it is apparent that the relief therein claimed was not a proper subject to be determined in a court of equity. Complainant’s bill was brought to impeach a tax deed, issued on the 26th day of March, 1880, on the ground that it was void, and hence a cloud upon his title. Any matter or thing having a bearing on the validity of the sale or deed was proper for the appellant to present. But the fact that appellant held other deeds for the property involved, which may have invested him with the fee, could ’ not properly be set up by an affirmative bill. If he holds the fee to the property under such deeds, he has his remedy in an action of ejectment, where his title and that of the complainant may be investigated and determined, as their rights may appear. On a bill for partition, conflicting titles may be investigated and determined, as settled in some of the'eases cited by appellant; but this is not a proceeding of that character, and the rules that govern in such a case have no bearing here. The decree of the circuit court will be affirmed. Decree affirmed.