Stillwell v. Brammell

Mr. Justice Magruder delivered the opinion of the Court: This is an action of ejectment brought by plaintiff in error against defendant in error in the circuit court of Pike county to recover the possession of the west half north-east quarter section 20, town 5 south of range 6 west of the fourth principal meridian, in that county. A jury was waived by agreement and the case tried by the court, who found the defendant not guilty, overruled the motion for a new trial, and rendered judgment for the defendant and that he recover and have execution for his costs. [4] Upon the trial the plaintiff submitted to the court written propositions to be held as law in the decision of the case, which the court declined to hold as law and marked “refused.” The points hereinafter discussed arise upon these propositions. Plaintiff sought to recover upon a tax deed; It was admitted on the trial that the land was sold for the non-payment of a special assessment for the year 1880 made for the purpose of repairing a levee located in the Sny Island levee drainage district, and that the State and county taxes had been paid. In connection with the tax deed plaintiff introduced in evidence two affidavits, one by B. S. Wills for the purpose of showing compliance with section 216 of the Revenue act, and one by I. S. Irwin for the purpose of showing compliance with section 217 of that act. The latter section provides, that every purchaser at a tax sale or assignee of such purchaser, by himself or agent, “shall, before he shall be entitled to a deed, make an affidavit of his having complied with the conditions of the foregoing section, (216) stating particularly the facts-relied on as such compliance,” etc. The material part of Irwin’s affidavit, which he made as agent of Stillwell was as follows: “That the said Stillwell caused to be served written or printed, or partly written and partly printed, notices of his purchase at said tax sale upon ............. the only person in actual possession or occupancy of said............; also, upon............. the person in whose name the same was taxed or specially assessed ; and also, a like notice was given to........... the owners or parties interested in said land, in the manner stated in the affidavit of B. S. Wills, hereto attached, at least three months,” etc., prior to the time of redemption. This affidavit is defective in not giving the names of the parties upon whom the notices were served. By the use of the word, “notices,” it would appear that more than one notice was served. By the use of the words, “owners or parties interested,” it would appear that there was more than one owner or more than one party interested. The phraseology of the affidavit implies that the person in possession or occupancy was a different person from the one in whose name the land was taxed or specially assessed, and that the latter was a different person from either of the owners or parties interested. Section 216 requires that the notice of the purchase shall be served on every person in actual possession or occupancy of the land, also on the person, in whose name the same was taxed or specially assessed, if he or she can be found, etc., also on the owners or parties interested in said land, if they can be found, etc. If the affidavit made under section 217 does not show the names of the parties belonging to these several classes,- upon whom notices have been served, it omits to state one of the most important facts, which can be relied on to show a compliance with section 216. It is claimed, however, that the failure too give the names in Irwin’s affidavit of the parties.served is cured by the reference made therein to the affidavit of Wills thereto attached. The affidavit of Wills is as follows: “Robert S. Wills, being duly sworn, states, that at the request of A. J. Stillwell, he served, on the 13th day of February, 1883, the foregoing notice, which was partly printed and partly written, by delivering a duplicate copy thereof to J. W. Brammell, in actual possession or occupancy thereof, and as owner or party interested therein, and as the person in whose name it was assessed. He was living on the land at the time of serving the notice. R. g. Wills. “Subscribed and sworn to before me on this 23d day of August, 1883. . a L g CTerfc." [Seal.] The Irwin affidavit merely refers to the Wills affidavit for the purpose of indicating the manner, in which the service of the notice or notices was made. The manner of service, as shown by the latter affidavit, was by handing a duplicate copy of the notice to the person intended to be served. The Wills affidavit does not supply the name of more than one person nor mention the service of more than one notice. But the affidavit of Wills is insufficient, even if it be regarded as a part of the affidavit of Irwin and as supplying all the omissions noticeable in the latter. Wills swears that he delivered a copy to Brammell “as owner” and “as the person in whose name it (the land) ivas assessed.” This does not meet the requirements of section 216. That section says that the owner must be served. It is not sufficient that service is had upon some one whom the party making the service may choose to designate as owner. The person to be served is he, in whose name the land is taxed or specially assessed, and not some individual who may be regarded as the person contemplated by the statute. There is no allegation that Brammell was owner, or that he was the person in whose name the land was taxed or specially assessed. Again, the notice, referred to in Irwin’s affidavit, was defective. It was as follows: “Notice is hereby given, that at the sale of lands, town and city lots, made pursuant to law, in Pittsfield, in the county of Pike, and State of Illinois, for the delinquent'taxes and special assessments levied for the year 1880,1 became the purchaser, on the 6th day of June, A. D. 1881, of seventy-four acres,—the west half north-east quarter of section 20, township 5, range 6, which was assessed to J. W. Brammell for the year 1880. The time of redemption (two years) will expire on the 6th day of June, 1883. Thereafter, I will be entitled to a deed for the same. . A. J. Stillwell.” Section 216 requires that the notice shall state when the purchaser “purchased the land or lot, in whose name taxed, the description of the land or lot he has purchased; for what year taxed or specially assessed; and when the time of redemption will expire.” 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 Ill. 115. “The title to he made under a tax deed is one stricti juris.” (Wisner v. Chamberlin, 117 Ill. 568.) As plaintiff in error was not entitled to a deed until he made the affidavit required by section 217, and as the affidavit delivered by him to the county clerk did not comply with the provisions of that section, the ruling of the trial court upon the propositions submitted to it was correct. The judgment of the circuit court is accordingly affirmed. Judgment affirmed.