Ambler v. Glos

Mr. Justice Scott delivered the opinion of the court: The first question presented has heretofore been determined adversely to the contention of appellant by this court in the case of Glos v. Holberg, 220 Ill. 167. It is next said by Timke that the decree is erroneous for the reason that it did not provide that he should be reimbursed upon the cancellation of the certificate of purchase held by him. In answer to this, the appellee contends, first, that a proper tender was made to and accepted by Jacob Glos, and that this was, in fact, a payment to Timke. The examiner reported, and the court by its decree determined, that the certificate of sale was sold and assigned to Timke on December i, 1905. This finding of fact has not been challenged by the appellee by objection,- exception or assignment of cross-error, and it must therefore be regarded as not open to question. The tender and payment was made to Glos in his office in Chicago on December 26 or 27, 1905. At that time he disclaimed ownership of the certificate but said he would accept the money, and it was paid to him. At that time the certificate was not in Glos’ possession nor in his office. Timke is a nephew of Glos and was in his employ at the time of the tender but was not present when the money was tendered and paid to Glos, and there is no evidence whatever to indicate that Glos was authorized to receive the money for Timke, or that the payment to Glos was a payment to Timke, or that the money paid to Glos was ever turned over to Timke. If there was any such evidence, however slight, the close and intimate relations of the two men would be a circumstance to give that evidence added weight, but the existence of those relations alone is not sufficient to show that this payment to Glos was a payment to Timke or that Timke ever received the money. It is then contended by appellee that a payment to Glos, who was the original purchaser, was a good redemption although he had sold and assigned the certificate to Timke, inasmuch as the assignment of the certificate was not made a matter of record. Reliance is placed upon that portion of section 215 of chapter 120, Hurd’s Revised Statutes of 1905, which provides that the receipt of the redemption money by any purchaser shall operate as a release of all claim to the real estate purchased at the tax sale. Section 207 of that chapter provides that the certificate of purchase shall be assignable by endorsement, and that the assignment thereof shall vest in the assignee or his legal representatives all the right and title of the original purchaser. In a case where the original purchaser has sold and assigned the certificate, and the party desiring to redeem knows that the original purchaser no longer owns the certificate, the word “purchaser,” as used in section 215, supra, must be regarded as meaning the assignee. If Glos, at the time of the tender and payment to him, had not disclaimed ownership of the certificate a different question would be presented. Under the circumstances shown by this record the tender and payment was not made to the right person, and the decree is erroneous because it does not provide for Timke’s re-imbursement. By his original brief and argument appellant urges certain assignments of error questioning the action of the court in disposing of the costs. By his reply brief he withdraws those assignments. - The decree of the circuit court will be reversed and the cause will be remanded to that court, with directions to enter a decree in substance as that appealed from, except that it shall provide for the cancellation of the certificate only upon Timke’s re-imbursement, precisely as though no tender or payment had been made to Glos. Reversed and remanded, with directions.