| Ill. | Sep 26, 1887
Although the bill in this case contains no averment as to the time when the defendant in error (complainant below) became the owner of the premises, and the evidence in the record is silent in respect thereto, in the absence of both averment and proof it must be presumed, as against the pleader, that the complainant in the bill or his grantors were the owners of the premises at the time the several years’ taxes upon the premises (and for failure to pay which the tax sales were made which formed the basis of the outstanding tax titles relied on by the plaintiff in error) accrued, and under the law it was his or their duty to have paid the same. The owner did not pay, but twice permitted the premises to be sold for taxes—the last time for the accumulated taxes of three years. At the first sale the plaintiff in error became the purchaser, and under the second, became the assignee of the purchaser; and the evidence also shows that he also paid the taxes upon the premises for some of the years subsequent to the second sale. To permit the party claiming to be the owner, under such circumstances, on bill to remove-tax deeds as clouds upon his title, to have this equitable relief, and at the same time to cast the tax-purchaser in the costs, is clearly inequitable, and in direct conflict with the ruling announced in Gage v. Busse, 102 Ill. 592" date_filed="1882-03-28" court="Ill." case_name="Gage v. Busse">102 Ill. 592. And this is so, notwithstanding the averment in the bill (expressly denied in the answer) that the defendant in error had offered to pay to the plaintiff in error the taxes the latter had paid, with interest and penalties. That offer, as the bill shows, if made at all, was made, not to the plaintiff in error himself, but to some one (whom the bill does not disclose,) said to be an agent of plaintiff in error. It is neither averred nor proved that this nameless agent was such an agent of the plaintiff in error as that his refusal would bind the principal, and there is nopretence that the plaintiff in error had actual notice of this-offer. If the defendant in error desired to place the plaintiff in error in the wrong, as a basis of equitable relief, the offer should have been made in the character of a tender, and that tender should have been kept good by bringing the money into court, or, according to the practice in chancery, by offering to do so in the bill. The bill contained no offer of this character, and it was error to decree costs against the defendant in that proceeding.
As this cause must be remanded, we ought, perhaps, to notice some of the other objections insisted upon.
Various exceptions were taken to the master’s report,—and first, as to the amount decreed to be paid by defendant in error. By the terms of the decree, the complainant was required to pay to the defendant $80.32, “which amount appears due the defendant from the complainant, for taxés, interest, penalties and costs arising under the tax sales and tax deeds of conveyance, ”—that being the amount found and reported by the master on the special reference. And it was objected that the master had not stated the account in such way that it could be ascertained what mode of computation he adopted, or how he reached the result stated, and, also, .that he had not allowed to the plaintiff in error the money paid by him at the several tax sales, with interest, penalties and costs, or the amounts of subsequent taxes paid by him, with interest. An inspection of the report shows this exception was well taken. The master made no pretence of stating an account of the payments made by the plaintiff in error “for taxes, interest, penalties and costs, ” as he was by the decree directed. What he did, was to report the testimony presented before him, documentary and oral, and find there was due the plaintiff in error, under the sale of September, 1873, $3.96; under the sale of October, 1876, $74.78; and under special assessment of August, 1877, $1.58. What part, if any, of these several amounts was certainly for taxes, and for interest, and for penalties, and for costs, does not appear. The very object of a reference to state an account is defeated by the course adopted by the master in this case, and instead of aiding the court, is well calculated to produce just such a case of doubt and uncertainty as is here observed. The master should state his account in detail, by itepis, times, rates, etc., and show the items claimed and disallowed, as well as the items allowed. Then, on exception, the attention of the court need only be directed to the items, times, rates, etc., to which exception is made. It is not enough, in this character of case, and under such a specific order of reference, to report the testimony en masse, and the amounts in the aggregate, with no reference to items claimed and disallowed, as was here done. Brockman v. Aulger, 12 Ill. 277" date_filed="1850-12-15" court="Ill." case_name="Brockman v. Aulger">12 Ill. 277; Craig v. McKinney, 72 id. 305.
In the view here taken, it will be unnecessary to pass upon the other errors assigned.
The decree of the Superior Court will be reversed, and the cause remanded to that court for further proceedings.
Decree reversed.