People v. Ogdenn

Mr. Presiding Justice Gridley delivered the opinion of the court. It is contended by counsel for the City of Chicago that the decree should be reversed because it is in violation of section 72 (as amended) of the “Act concerning Local Improvements,” in force July 1, 1897. (J. & A. ¶ 1463.) Section 72, prior to its being amended, provided that: “Any city, village or town interested in the collection of any tax or special assessment, may, in default of other bidders, become a purchaser at any sale of property to enforce the collection of the same, and may, by ordinance, authorize and make it the duty of one or more municipal officers to attend such sales and bid thereat in behalf of the corporation.” By an Act approved June 28, 1913, in force July 1, 1913, said section 72 was amended by adding the following : “Any municipal corporation which holds any certificate of sale or tax deed acquired in pursuance hereof shall be entitled to reimbursement of the amount paid by it at such sale, including the cost and interest at the rate, of five per cent (5%); and no .final judgment or decree shall be entered in any case either at law or in equity or in proceedings under the eminent domain act involving the title to or interest on any land in which such municipal corporation shall be a party, until reimbursement has been made to it as herein provided.” Counsel for the city argue that by reason of the provisions contained in said amendment to said section the court should not have entered a decree giving said surplus in the county treasurer’s hands to the petitioner, Coombs, until said petitioner had reimbursed the city for its expenditures, including costs and interest, at the sales of the property in question for special assessments in default of other bidders. We think it is a sufficient answer to the contention to say that, subsequent to the filing of counsel’s brief in this court, our Supreme Court has declared that portion of section 72 as amended in 1913 to be unconstitutional. City of Chicago v. Gage, 268 Ill. 232, 243. It is also contended by counsel that the decree should be reversed because it is in violation of the provision contained in section 224 of chapter 120 of the Revised Statutes of Illinois (J. & A. ¶ 9443), as follows: “That any judgment or decree of court, setting aside any tax deed procured under this act, shall provide that the claimant shall pay to the party holding such tax deed all taxes and legal costs, together with all penalties, as provided by law, as it shall appear the holder of such deed, or his assignors, shall have properly paid or be entitled to in procuring such deed, before such claimant shall have the benefits of such judgment or decree. ’ ’ We cannot agree with the contention. The order or decree appealed from does not set aside any tax deed. It has several times been decided by our Supreme Court that a tax title holder, by virtue of said provision in section 224, is entitled to be reimbursed only when the tax title is set aside. Riverside Co. v. Townshend, 120 Ill. 9; Gage v. Eddy, 186 Ill. 432; City of Chicago v. Pick, 251 Ill. 594, 600. Furthermore, as we view it, the admission on the hearing that “the city makes no claim in this suit as to the title in it of any of the property in evidence” amounted in effect to an admission that its tax deeds were not valid, and it has also been decided that the holder of an invalid tax deed is not entitled to reimbursement for the amount of money expended in acquiring the tax title (City of Chicago v. Pick, supra; O’Connell v. Sanford, 255 Ill. 49; South Park Com’rs v. Berg, 259 Ill. 447); and that this rule applies where a city is the holder of such a tax deed as well as where the holder is an individual (O’Connell v. Sanford, 256 Ill. 62). And we do not think there is any merit in the contention that the petitioner, Coombs, having no greater rights than Ogden, is estopped to claim that the city is not entitled to be paid out of said surplus the amount it expended in procuring said tax deeds, or in the further contention that the decree in effect violates the law that a man cannot take advantage of his own wrong. We are of the opinion that the decree of the Circuit Court should be affirmed. Affirmed.