Gage v. Lyons

Mr. Justice Shope delivered the opinion of the Court: This was a bill in equity to set aside two tax deeds, made by the county clerk of Cook county to Asahel Gage, dated, respectively, November 16 and 17, 1880, on a sale for taxes made in September, 1878, for delinquent taxes, special assessments and costs, as clouds on complainant’s title. The bill is in the usual form, and sets up the invalidity of the tax titles. Two of the matters alleged and relied upon only will be noticed in this opinion. The ownership of the lots in appellant is alleged, and that there was not sufficient proof of service of notice ■on the occupants of the land, and that there was included in the judgment upon which said sales were made, respectively, .seventeen cents excessive costs, and the deeds for that reason are void, and are clouds upon the complainant’s title, and •offers to pay the amount of the tax sale, subsequent taxes, with interest, and such other sums as equity may require. The cause was heard upon bill, answer, replication and proofs. One of the principal grounds relied .on as justifying the ■decree of the Superior Court setting aside the deeds, is, that the judgment upon which the deeds were severally predicated contained seventeen cents costs not authorized by law. If the judgment against land for taxes includes an illegal tax or improper costs, and there is no appearance by the owner, a sale of the property thus wrongfully charged will be void. Riverside Co. v. Howell, 113 Ill. 256; McLaughlin v. Thompson, 55 id. 249; Drake v. Ogden, 128 id. 603. In Combs v. Goff, 127 Ill. 431, we held, that if the judgment included costs not due •or earned at the time of its rendition, but to accrue subsequently to the entry of the judgment, the error was fatal, and no title passed by virtue of a sale and tax deed under such judgment. See, also, Harland v. Eastman, 119 Ill. 27. The record of the proceedings in the county court, in which said judgment for taxes was rendered, was produced at the hearing, and it does not appear therefrom that there was an •entry of appearance made by appellee, or objections filed by him to the. entry of said judgments. In addition to this a ■witness was produced by complainant, who testified that he was familiar with the tax judgment records of Cook county; that he had made diligent search for, and was unable to find ■among the files of said court, any objections filed or papers showing such appearance. Conceding, as contended by appellant, that the burthen was upon appellee to show, negatively, that no appearance was entered or objection filed, this evidence, in the absence of anything showing the contrary, sufficiently established that fact, and appellant is therefore not estopped by the judgment from showing that it was for too-large a sum, or that it included costs in excess of what were legally chargeable. It is said by counsel that it can not be told, in respect of the deed predicated upon the sale made for the special assessment, which were the costs in making the special assessment and which were charged by the collector and entered into the judgment as costs upon his return of the special assessment as delinquent. This is a mistake. The judgment was for $1.81, made up of the following items: Amount of installment of assessment due, 71 cents; interest, 70 cents; costs, 40 cents; total, $1.81. The 40 cents costs included in the-judgment, counsel for appellant says, in his brief, was made up of the following items, and were, as he insists, properly included : Making delinquent list to be filed with county clerk, (Eev. Stat. see. 21, chap. 53,) 3 cents; making delinquent list, for printer, 3 cents; for selling each lot, 3 cents; printer’s fee advertising delinquent list, (see. 22,) each lot, 10 cents; making list of delinquent lands for judgment, 3 cents; for entering judgment, 1 cent; for making list of delinquent lands on precept, 2 cents; for services for attending sale and issuing certificate of sale, 15 cents; total, 40 cents. It is clear that the item of 3 cents for selling each lot, making delinquent list on precept, 2 cents, and attending sale and issuing certificate of sale, 15 cents, could not have been earned fees at the time of the rendition of the judgment, and were therefore improperly included therein. In no event could said amount of costs have been earned and due when the judgment, was rendered. The lot owner had the right to pay his taxes after judgment, without being obliged to pay those items of costs; but as they were included in the judgment, it could not be discharged or satisfied without the payment of the full amount for which it was rendered. Combs v. Goff, supra. It is shown, also, that Richard Cosgrove, and his wife, Mary, . lived in part of the house upon the lot in question from before the time of the sale until long after redemption expired. Proof of service of notice by Snow and Morely, agents of Gage, shows service upon several parties in proper time, under the statute, including Mary Cosgrove, but there is no evidence whatever of service upon Richard Cosgrove. The affidavits of service show who the agents found in possession, and that they served said notice upon all persons so found in possession by them, and prima facie were sufficient proof of service to comply with the statute. The testimony, however, shows that Richard Cosgrove and wife moved upon the premises in 1877, and lived on the same until about three years before the trial, which was, as before stated, long after redemption had expired. Richard Cosgrove had a verbal lease of part of the premises, and the proof shows that his money paid the rent, although it was sometimes paid by his wife. Mrs. Cosgrove testified that her husband resided on the premises all that time, and was at home. In addition to the fact that Richard Cosgrove was the lessee, he was the head of the family and resided with the same, and if it be conceded that part of the money paid for rent belonged to the.wife, it would not alter the fact of his possession and actual occupancy of the premises. The statute required a notice of the tax purchase, etc., to be served on every person in the actual possession or occupancy of the lands or lots sold. Where the owner is not an occupant himself of the land, it is to be presumed that the notice will be more likely to reach him, and he be apprised of the sale, when served upon all the occupants than if served only upon part. It is not, however, important that a reason should be given-why a tenant, or tenants, in the actual occupation of the premises, or of some part of them, should be served with notice. It is enough that the statute requires it as a condition precedent to the right to have the tax deed issued. It does not appear that the service of the notice on the wife of Richard Cosgrove was intended as service upon him, but if it was, service of notice upon the wife df the tenant in possession is not sufficient to meet the requirements of the statute, which is imperative, and must be followed. It is conceded that both deeds stand upon the same footing. The court was justified in rendering a decree finding the deeds void, and ordering them cancelled and set aside upon payment of the amount found equitably due for taxes, interest and costs, as was done. Finding no error in this record, the judgment is affirmed. Judgment affirmed.