Harding v. Brophy

Mr. Justice Magruder delivered the opinion of the Court: This is an action of ejectment brought by appellee against appellants to recover five acres of land in the town of Lake and county of Cook. The plaintiff below relied upon a tax deed. The premises were sold on September 2, 1886, on account of a delinquent special assessment for a water pipe in ■one of the streets of the town of Lake. The tax deed, executed in pursuance of such sale, bears date February 12, 1889. The plaintiff introduced in evidence the precept and judgment ; a certified copy of the application for the tax deed, including the affidavits, notices, publisher’s certificate and ■certificate of purchase; and, in connection with these, the tax deed issued upon such application. To this deed and the documents accompanying it many objections were made by the defendants, but all were overruled and exceptions were taken. Section 216 of the revenue Act provides that the purchaser at a tax sale, in order to entitle himself to a deed, shall serve, or cause to be served, written or printed, or partly written or partly printed notice of such purchase on certain persons, and, among others, on “the owners of * * * said land or lot, if they can, upon diligent inquiry, be found in the county, ” •etc., and that “if the owners * * * upon diligent inquiry, -cannot be found in the county, ” then such notice shall be published in a newspaper, etc. The affidavit, filed by the plaintiff with the clerk of the county court in supposed compliance with section 217 of the revenue law, so far as the contents of such affidavit appear in this record, states, that “during the two months next preceding the last three months prior to the expiration of the time ■of redemption from said sale affiant made diligent search and inquiry in said county for the owners of said premises, and, upon such diligent search and inquiry, was unable to find the navies of any of said owners except George F. Harding * * * and * * J. A. Packard, and upon such diligent search and inquiry was unable to find the names of any of said owners except George F. Harding, J. A. Packard and estate of D. L. Gregg, ” etc. The plaintiff, by stating that he was” unable to find the names -of any of said owners, except the estate of D. L. Gregg and .two other persons, thereby impliedly asserts that the estate of ZD. L. Gregg was one of the owners. Therefore, he was required to serve the notice upon the representatives of the estate of ZD. L. Gregg, if they could, upon diligent inquiry, be found in the county. There is no affidavit or other evidence to show that the representatives of that estate were personally served with notice. The affidavit of one Geddes states, that he served the notice on Harding personally by handing it to him and leaving it with him, and that he served it on Packard personally by handing it to him and leaving it with him, but both the affidavit of Geddes and that of appellee, which were the only affidavits presented to the county clerk upon the application for a deed, are silent as to any personal service upon the representatives of said estate. The affidavits do not show, as an excuse for such failure to make personal service, that the representatives of the estate could not, upon diligent inquiry, be found in the county. Appellee merely states in his affidavit, that he was unable, upon diligent search and inquiry, to find “the names of any of said owners except” Harding, Packard and the estate of D. L. Gregg. It would appear from this that he did find the name of the estate of D. L. Gregg, as an owner of the property, but it nowhere appears that he was not able, upon diligent inquiry to find in the county those who represented that estate. It was not sufficient to search and inquire for the names of the owners. It was necessary to make diligent search and inquiry for° the owners themselves. It is true that the affidavits show the publication in a newspaper of a notice addressed to the estate of D. L. Gregg. But such publication, is only made necessary, and can only be regarded as a substitute for personal service, when the owner cannot, upon diligent inquiry, be found in the county. We are, therefore, of the opinion that appellee was not entitled to his tax deed under the imperative requirements of sections 216 and 211 of the Revenue Act. After this cause had been submitted to the court and taken under advisement, a stipulation purporting to be signed by both counsel was filed with the clerk of the court. By this stipulation an attempt is made to submit to us a different case from that which was submitted to the trial court. The record before us, duly certified by the clerk of the circuit court, shows that, upon the trial below, certified copies of the affidavits, notices and other documents, embodied in the application to the county clerk for a deed, were introduced in evidence by the plaintiff. No objection was made that copies were offered instead of the originals. The stipulation assumes to state, that the original affidavit of the plaintiff on file in the county clerk’s office did not contain certain words which were in the certified copy of such affidavit as introduced on the trial. We cannot consider this stipulation. It is not a part of the record. No motion, founded upon it, was made before us while we were in session. It was not called to our attention until the business of the term was closed. We are a court of review, and can only review the case made before the court below and brought before us by the record. We cannot permit counsel to present to us by agreement a different case from that which was passed upon by the trial judge. He never had the original affidavit before him'. He had only copies, whose correctness and accuracy neither side questioned at the 'time of the trial. If we should allow our action to be governed by the new facts set forth in the stipulation, we would be acting upon a new and original record made in this court long after the cause had left the- control of the court whose proceedings we are asked to review. The judgment of the Circuit Court is reversed and the cause is remanded to that court. Judgment reversed.