*1 (No. 20366. Plaintiff in Error, Bank, vs.
The Elmhurst H. Defendant Error. Stone, Robert Opinion Rehearing denied Dec. October filed *2 Edgar H. R. F. and O’Connor, Bates, Alben John counsel,) C. and W. M. of (F.
Parnell, Webster, Oien, for in error. H. in defendant error. Fischer, Jr.,
William Mr. reported opinion: Commissioner Edmunds On March 15, Robert H. tendered to the 1930, Stone Elmhurst Bank, trustee, the and sum of $566.38 demanded a of re-conveyance certain in DuPage property county which he claimed to be the owner. The tender was refused. On March 20 thereafter filed an affi- Stone davit in the office of the clerk county county. DuPage he on 24, a tax alleged In this affidavit May 1927, the been had issued the county deed covering property a sale clerk of Albert H. Glos DuPage county assessments on had that the tax 1924; June deed had been duly the interest recorded; acquired thereunder been Glos had conveyed Elmhurst Bank as and that neither Glos nor bank trustee, had been ever had insti- possession or property tuted thereof. Further proceedings possession affidavit set forth tender and re- allegations fusal to re-convey. affidavit the Upon filing court of county entered an judge DuPage county order that notice of the the bank. directing filing bank entered a and filed an an- appearance swer title in claiming itself, was the denying Stone owner of the and that the statute under property alleging which the was brought was proceeding unconstitutional. bank, and the court ordered had, was hearing A interest, and to re-convey sum $566.38 out writ of The bank has sued a property Stone. error to review record. re-convey to which the order to statute pursuant
was entered is “An title and act regard for the titles fixing of tax providing re-conveyance for failure penalty or refusal to Cahill’s re-convey.” ( Stat. It enacted chap. 120, pars. 376-379.) amended other things, provides, among whenever the anyone of a tax deed to real or grantee estate, claiming shall not be in or thereunder, possession occupa- tion of the so claimed and not take or insti- premises tute within faith to take good possession one year after the date of the first deed tax al- tax leged title, it shall be lawful for the owner of real estate, or his agent or tender attorney, pay title holder the amount of out moneys paid expended *3 the latter the upon sale, with interest and other specified charges costs, and that such or tender upon payment the tax title holder shall the the re-convey to premises owner. The statute further that affidavit provides upon or proof of tender made, the being county court, the same proceeding wherein the sale deed is- the upon sued, may order, the service of such notice as the court the the amount of tender direct, deposited the sheriff or county treasurer, master in any in the chancery county may, name of the holder of such to the title, owner convey premises thereof. A for failure penalty or refusal to re-convey to the owner after or tender of the amount due is incorporated in the act.
This statute was consideration Woitynek v. Franken, where a lot was sold for taxes which accrued after the death of the owner. Upon peti tion of the filed two executor, years after such sale, an
order was entered that the lot be sold free and clear of the tax such from the deed, executor to redeem The sale. holder of the had tax title not been pos- session and had not instituted to pos- proceedings session. held re- and, We the order erroneous, was “A at ferring statute, said: tax deed is effective the time it is executed. If the have been reg- proceedings ular it conveys title in fee and the grantee simple maintain ejectment for the The possession premises. fact that he does not within a acquire year possession and does not institute does purpose not avoid his deed or him of the title or the deprive to maintain an action for the but the effect of possession, is that the owner delay of the real estate may compel re-conveyance amount premises by paying the holder of the tax title thereon, with interest paid, together with the tax and assessments subsequent paid and fees and in this statutory costs. executor case did seek not to avail himself of the conferred privilege the statute. He made no tender. His petition should be sold and that the sale the premises simply the claim of the holder of the tax title. be free from should was to of this title and destroy effect appellant’s in the land and transfer his all his interest claim to pro- ceeds sale, not be to might might equal which he was entitled to have himto re-paid the amount he could be under the statute before required re-convey. statute the title of the holder of a tax deed Under can he consent, not be sold without cannot be required until he has received the amount of re-convey money he is which he is not submit to a obliged *4 his title before received sale of having actually money.” In Layman v. Langlois, a bill was filed in set aside circuit court a tax deed. The statute here attacked was relied upon by held complainant. We demurrer to the bill was that a properly sustained, saying: deed it in the tax flaw or defect of any absence “In the title as such a but constitutes a cloud constitute does not for by conveyance provided by be divested can only a complete That statute provided here invoked. the statute er- furnished plaintiffs means only and was remedy in the absence title re-vested in them ror for having de- title the tax which would render flaw or defect any fendant error void.” contends in error
In the statute attacking fee of title it tax deeds to divest the holders of purports other have they provisions duly acquired it denies to law, the Revenue and that in its operation is guar due law which holders of such deeds the process Plaintiff anteed constitutions. the Federal and by State its collected contends that when the also revenue and made in fee to the purchaser, a conveyance fee title the title thus other is the same conveyed discriminatory and cannot be made the of adverse subject it or other source from which reason of the legislation by derived. These not well taken. contentions are noted does not affect outset that the statute at title him of the holder deed of the tax but simply requires institute steps to take possession, within one from the year of the property take possession, reimbursed. his title when tax deed or re-convey date of his Moreover, Langlois, supra.) (Layman and, in every is inherent government, rests necessity, pos is vested us, legislative department, so far as the subject, except sesses over power plenary or of the constitution of be restricted by Rock Island and v. Rockford, the United (Porter States. of taxation Railroad Co. Ill. 561.) power St. Louis its and the virtue of itself, State, attaches to the land lien all taxable lands with has a sovereignty, perpetual whatever divested, changes its cannot be limits, indi from one conveyances may happen ownership *5 162 2 another. (Rhinehart Schuyler, 473.)
vidual to v. Gilm. to enforce The of the implies State power power its in State, of the tax, collection and necessarily the mode of sovereign accomplish capacity, prescribe this ing and define the interest property upon taxes shall attach as liens interest shall upon and what pass those whom thereof, owing by non-payment Iowa, duty has been Purdy, v. imposed. (Lucas 142 120 W. 16 1063; 332.) N. Cal. People Seymour, v. in error, statute Assuming be, claimed by plaintiff an act it falls with sales, from authorizing redemption which the scope undeniably legislation re to enact. is law favor power policy Reed, from tax Trust Co. v. demption sales, (Union 231 Mass. 199, N. and this is reflected E. 1093,) policy 99 rule general of courts to authorizing to statutes give from redemption tax sales a construction favorable to own ers. (Corbett Nutt, v. 10 2 on Taxa 464; Wall. Cooley tion, ed.—sec. 511; id. secs. 1558, 1562.) —4th 4 statute here involved was in force when the made tax-buyer purchase. law him with notice of its charged ap plication to the much transaction. It was as part mode of set procedure in connection with by up the collection of taxes as other virtue statutory provisions became certain con tax-buyer objection a deed. The that makes no tingencies, pro vision for trial is untenable. judicial hearing by jury 86 Ill. Matter N. 312; Trustees Y. P. (Mix People, E. School, it is Y. Unless N. conflict some 574.) 31 constitutional other than those provisions already suggested it must be effect, cannot heard to object limitations which law imposes him as the holder of at a tax property purchased sale while it was in force.
Plaintiff in error contends that the statute is invalid because it “the abrogates constitutional to the tax guaranty The basis of a redemption period.” purchaser constitution, section article contention all is as “The from follows: redemption sales of real estate of taxes or non-payment exist in favor whatever, assessments of character shall of owners for a estate, interested such real persons of not less from period than two such sales thereof. years And the General rea law for Assembly provide *6 sonable notice to be to the owners or inter parties ested, by or of of fact publication otherwise, of the for such taxes property assessments, when the time of Provided, that occu redemption expire: shall in all cases be pants served with notice before personal the time of There is in lan redemption expires.” an guage obvious in favor of guaranty owners and persons interested in real estate which been sold for the non of taxes or assessments, of the of redemption a not of less than from period years two such sales, (Gage 100 Bailey, but we not 530,) do find in it restriction guarantees tax purchasers owners and interested shall have a persons only which to period redeem.
Plaintiff in error insists that inasmuch as a is notice required when the time stating will redemption expire, which notice must be served before the time of redemption if the time for expires, never redemption expires (as, effect, it would not allegedly under statute in- here it would volved,) a notice in com- impossible give pliance constitutional requirements. Whatever merit there might otherwise be in the argument, it can have no by way er- force, sustaining position plaintiff because, does not clearly that the ror, appear requirements as to constitute whose guaranties notice benefits extend to or its grantor. error contends
Plaintiff in county court had no enter order which is jurisdiction to challenged in this is, that the order was based The reason assigned case. fee, of the determination ownership court cannot county the limitations constitution the title estate. of article to real adjudicate Section courts shall be that county constitution provides courts record and shall have in vari- jurisdiction original ous matters, collection of including “proceedings taxes In our the order here and assessments.” opinion involved arose out of a embraced within proceeding fairly the county the statute gave provision, properly court it. enter jurisdiction order of court is affirmed. county ;
Per Mr. foregoing opinion reported by Curiam Commissioner is as the hereby adopted opinion Edmunds entered in court, and accordance therewith. judgment
Order affirmed. (No. 20770. et vs. al. G. W. et al. Buttitta Appellees, Lawrence
James
Appellants. Opinion October Rehearing denied Dec. *7 filed