Glos v. Evanston, Building & Loan Ass'n

Mr. Justice Hand delivered the opinion of the court: The first contention of appellant is, that appellee, not being in the possession of the premises and the same being occupied and improved, has no standing in a court of equity to file a bill to remove a cloud, or to restrain appellant from obtaining a title which might become a cloud, upon its title to the premises in controversy. If the object of this bill is to remove a cloud from the title of appellee, or to restrain appellant from obtaining a title which might become a cloud thereon, the contention of appellant is correct. (Hardin v. Jones, 86 Ill. 313; Gage v. Abbott, 99 id. 366; Wetherell v. Eberle, 123 id. 666; Johnson v. Huling, 127 id. 14; Glos v. Randolph, 133 id. 197; Hewes v. Glos, 170 id. 436; Glos v. Goodrich, 175 id. 20.) On the other hand, if the bill is based upon the ground of irreparable injury to appellee by reason of the danger of the loss or the destruction of its security, and the object of the bill is to redeem from the sale, and any ground is shown why the title sought to be obtained by appellant is invalid, under the authority of Miller v. Cook, 135 Ill. 190, and Burton v. Perry, 146 id. 71, the appellee can maintain its bill, although its only interest is that of mortgagee and the land is improved and in the possession of another. It is further contended by appellant that he was not bound to notify appellee, who was but a mortgagee, of the expiration of the time of redemption, and that the failure to give appellee such notice is no valid reason why appellant should not receive a deed from Knopf, as county clerk, for the premises in question. Section 5 of article 9 of the constitution of 1870 provides: “The General Assembly shall provide by law for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided, that occupants shall in all cases be served with personal notice before the time of redemption expires.” To carry into effect such constitutional provision the General Assembly has provided by law for what shall be deemed reasonable notice to owners of real estate sold for taxes or special assessments. Section 216 of the act of 1872, entitled “Revenue,” (Rev. St at. 1874, as amended by the act of 1879; Laws of 1879, p. 256;) provides: “Hereafter no purchaser or assignee of such purchaser, of any land, town or city lot, at any sale of lands, or lots, for taxes or special assessments, due either to the State or county, or incorporated town or city within the same, or at any sale for taxes or levies otherwise .[authorized], by the laws of this State, shall be entitled to a deed for lands or lots so purchased, until the following conditions have been complied with, to-wit: Such purchaser or assignee shall serve, or cause to be served, a written or printed, or partly written or partly printed notice of such purchase, on every person in actual possession or occupancy of such land or lot; also, the person in whose name the same was taxed or specially assessed, if upon diligent inquiry, he or she can be found in the county, also, the owners of or parties interested in said land or lot, if they can, upon diligent inquiry, be found in the county, at least three months before the expiration of the time of redemption on such sale." The question whether, within the meaning of this statute, a mortgagee is .an interested party and entitled to be notified by the purchaser of the expiration of the time of redemption, is not an open question in this court. In the case of Smyth v. Neff, 123 Ill. 310, we held that a mortgagee, by virtue of this statute, is not entitled to such notice; that the statute must be regarded as meaning the same as though the words “or parties interested" were omitted; that the legislature having failed to designate the “person interested" in lands sold for taxes and special assessments, other than the owners or persons in possession or in whose name the land is taxed or assessed, the purchaser is not required to serve any notice of his purchase upon the person holding a mortgage or other lien upon the land in order to entitle himself to a tax deed. We say on page 320: “It is therefore apparent, when the purchaser at tax sale has given the proper notice to the owner he has complied with the statutory requirements in that respect, for no other ‘parties interested’ are designated by law, either as a class or as individuals, upon whom he could serve notice. Had mortgagees or judgment creditors, or other persons having a lien on such property of record, been designated by name or as a class, such persons could have been readily ascertained by an examination of the public records. But as the statute now is, the purchaser cannot know, from any direction given, to whom he is expected to give such notice as the statute requires, other than to the owner. In that respect the statute must be regarded as meaning precisely the same as it would mean if the words ‘or parties interested’.had been omitted. In this case the owner was served with the statutory notice within apt time, and that is deemed a sufficient compliance with the law in this respect.” It is claimed by appellee that the sale in the case of Smyth v. Neff, supra, was had under the old statute, which did not provide for notice to the owners or parties interested in the land or lot, and that section 216 of the Revenue law, as amended in 1879, did not apply to such sale and was not properly before the court for construction at the time that case was decided. While it is true such amendment did not go into effect until after the date of the sale, it was in full force and effect and applied to such sale at the time when notice of the "expiration of the time of redemption should have been given and a deed made. We held in Gage v. Stewart, 127 Ill. 207, and in Smith v. Prall, 133 id. 308, that the act of 1879 was intended to take effect in presentí as to all notices served or to be served thereafter, and to apply to all purchasers at tax sales and their assigns, irrespective of when the sale for taxes was made. It is further claimed by appellee that the case of Smyth v. Neff, supra, has been modified and partially overruled by Gonzalia v. Bartelsman, 143 Ill. 634. We do not so understand the case, the point of which is, that notice must be served upon the parties who own the land at the time notice is served, and not those who owned the land at the time of sale. The object of giving the notice, it is said, is to enable those in whose, favor the right of redemption is, to exercise that right; but neither the constitution nor the statute contemplates the service of notice upon persons who have ceased to be interested in the land. Appellee insists that the decree in this case should be sustained on the ground that equity will permit redemption to be made from a judicial or tax sale where the person entitled to redeem has failed to do so by surprise or excusable neglect or has been misled as to the facts. There is no pretense in this case that the appellant, by. any act of his, surprised or misled the appellee. If the appellee saw fit to rely upon the statement of Goel that the premises had been sold in error and that he would see that they were redeemed or released, that was a matter between Goel and appellee, and in no way affected the rights of appellant. We are of the opinion appellant was not bound to serve notice of the expiration of the time of redemption from the sale in question upon appellee, whose only interest in the premises was that of mortgagee, and that the failure to serve such notice in no way affected the right of appellant to take out a deed under such sale; that appellee, having suffered to elapse the two years provided by law in which it had the right to redeem from such sale, and the want of notice being the only ground relied upon in the bill for equitable relief, the demurrer should have been sustained and the bill dismissed. For the reasons above stated, the judgment of the Appellate Court and the decree of the circuit court are reversed and the cause remanded to the circuit court, with directiofis to dismiss the bill. Reversed and remanded, with directions.