Glos v. Hanford

Mr. Justice Magruder delivered the opinion of the court: Counsel for appellees sets up a number of grounds, upon which it is claimed that the tax deeds, sought to be set aside, are null and void. We only deem it necessary, however, to notice two of such grounds, which, in our opinion, are sufficient to justify the decree of the court below. First—The first ground, urged against the validity of the tax deeds, is that there was no valid precept or process for a sale in the case of either of said tax sales. The three precepts for the sale of the premises in question were not made on-August io, 1896, the day of the sale, nor did they bear date as of that day, but one .of them was made, or bore date, on July 15, 1896, the date when the judgment was rendered, and the other two were made or bore date on July 20, 1896, five days after the rendition of the judgment. Under section 194 of the Revenue act, the county clerk’s certificate to the delinquent tax list should be made on the day advertised for sale, and, if made on the day the judgment was rendered, the sale is void for want of proper process. (Kepley v. Scully, 185 Ill. 52; Kepley v. Fouke, 187 id. 162; Glos v. Gleason, 209 id. 517). Said section 194 requires the county clerk to make a certificate to be entered on the record, and this certificate must be dated as of the day of the sale. The presumption is that the certificates were made at the times when they bear date, and as the certificates in the case at bar do not bear date as of August 10, 1896, the day of the sale, they are not in conformity with the statute. The validity of a tax title depends upon strict compliance with the statute; and, as the certificates here were not made at the time required by the statute, the process, under which the officer making the tax sale was authorized to act, was not valid. Second—The certificate to the delinquent list, which is the foundation of the three tax deeds in controversy, is defective. It commences as follows: “State of Illinois, county of Cook, ss.—I, William Penn Nixon, publisher of The Inter-Ocean, do hereby certify that the foregoing list of lands and lots contained in the newspaper known as The Inter-Ocean, to which this certificate is attached,” etc. The certificate is signed “William Penn Nixon.” This identical fonn of certificate was held by this court to be defective in McChesney v. People, 174 Ill. 46. It fails to certify the relation of the person making it to the newspaper, as required by section 186 of the Revenue act. Again, the delinquent list was not properly filed. The file-marks upon the delinquent list are signed by “Philip Knopf, county clerk.” In McChesney v. People, supra, it was held that the offices of county clerk and clerk of the county court are distinct, though filled in this State by the same person; and that the filing by such person of a newspaper advertisement of delinquent lands, certifying to the fact as “county clerk,” is not a compliance with section 186 of the Revenue act, requiring such newspaper “to be filed as part of the records of the county court.” The file-mark should have shown that the delinquent list was filed in the office of the clerk of the county court.of Cook county as is by law required,—not in the office of the county clerk of Cook county. (Glos v. Woodard, 202 Ill. 484). It is not denied on the part of appellant’s counsel that the defects in question exist, nor is it contended that the tax deeds are not null and void on account of such defects. But the contention of counsel for appellant is, that the allegation of the bill-is too general in its nature in averring that the deeds were void because of the defects appearing upon the face of the proceedings, and in not pointing out specifically upon the face of the bill what such defects are. We are inclined to think that this objection to the bill was good upon demurrer. The bill ought to show upon its face in what respect the tax title is invalid. But the appellant has waived his right to insist upon this objection here, because, after his demurrers to the original and amended bills were overruled, he did not stand by his demurrers, but answered the bill both as originally filed and as amended. In his answers he not only denied that the tax titles were invalid, but specifically averred that all the proceedings prior and incident to the tax sale and tax deeds were valid and regular. “The rule is that a defendant, by answering a bill in chancery after the overruling of his demurrer thereto, waives the demurrer, except so far as he may have the same advantage on final hearing; and he cannot assign for error the ruling upon the demurrer.” (Baumgartner v. Bradt, 207 Ill. 345, and cases there cited). In Gleason & Bailey Manf. Co. v. Hoffman, 168 Ill. 25, we said: “By answering after a general demurrer is overruled, the right to assign error in overruling the demurrer is waived.” Third—The point is made that Mrs. Emma J. Glos should have been made a party. Appellees were under no obligation to make her a party. If she was a purchaser at all, she was a purchaser pendente lite, the deed executed to her by her husband, Jacob Glos, having been made after the filing of the bill and the service of summons. She took her title subject to whatever decree the court might ultimately render in the case. (Harms v. Jacobs, 160 Ill. 589). Moreover, Mrs. Glos suffered no injury, because an order was entered before final decree, requiring the complainants to deposit the amount found due for interest and costs with the clerk for the use of Jacob Glos and Emma J. Glos, as their interests might thereafter be determined; and the decree finds that this was done. Such an order is not erroneous. (Bonner v. Illinois Land and Loan Co. 96 Ill. 546). Fourth—Counsel for appellant also claim that the decree is erroneous in ordering “that said deeds be delivered up and canceled.” We are inclined to think that the decree is erroneous in this respect, inasmuch as the deeds described other lands than the lots owned by the appellees. In Glos v. Adams, 204 Ill. 546, we said (p. 548) : “It further appears that the tax deed sought to be set aside and canceled included other lands than the premises claimed by appellee. In the decree the court set aside said deed and ordered that it be delivered up by Glos, and canceled by the clerk of the circuit court. This was error. The deed should not have been set aside and canceled, except as to the premises described in the bill.—Gage v. Curtis, 122 Ill. 520.” •It is not necessary, however, to reverse the case because of this defect in the form of the decree. The decree may be modified here by this court. (Low v. Graff, 80 Ill. 360). The decree will, therefore, be modified by the addition of the following words, to-wit: “In so far as these deeds relate' to the property described in the bill of complaint herein,” said words to be inserted in the decree after the following words, to-wit: “that said deeds be delivered up and canceled.” The decree of the circuit court, after being modified as above indicated, is affirmed, and the cost will be equally divided between the parties. Dgcrgg aMrmed^