| Ill. | Nov 23, 1892
delivered the opinion of the Court:
The question presented by the record is whether the plea interposed by appellant, Gage, was sufficient. In Cheney v. Patton, 134 Ill. 422" date_filed="1890-11-01" court="Ill." case_name="Cheney v. Patton">134 Ill. 422, we had occasion to consider, to some extent, the requisites of a special plea interposed to a bill in equity. It is there said:
“The rule applicable to pleas in equity is that the same strictness and exactness are required in them that are required in pleas at law, if not in matters of form, at least in matters of substance. One requisite of such plea is that it should clearly and distinctly aver all the facts necessary to render it a complete equitable defense to the case made by the bill, so far as the plea extends. Where its allegations being taken as true do not, so far as it purports to go, make out a full and complete defense, or where the necessary facts are to be gathered by inference alone, it will not be sustained. It must be specific and distinct, and must be perfect in itself, so that if true it will make an end of the case, or of that part of the case to which it applies.”
In Story’s Equity Pleading, sec. 665, the author says: “Another requisite of a pure plea is that it should clearly and distinctly aver all the facts necessary to render the plea a complete equitable defense to the case made by the bill, so far as the plea extends, so that the plaintiff may, if he chooses, take issue upon it.” Under sec. 20, chap. 116, of our statute, in a proceeding of this character, the court had the power to determine and decree in whom the title to the lands in controversy belonged, and the only object of making appellant a party to the proceeding, no doubt, was to have his title investigated and its validity determined. It was, therefore, incumbent on appellant, if he had title to the property, to set it up by answer or plea to the bill, so that its validity might be passed upon and determined. The appellant saw proper not to answer the bill, but put in a plea upon which he relied as a defense to the bill. Under the rule we have indicated in regard to the sufficiency of a plea to a bill in chancery, did the facts set up constitute an equitable defense to the case made by the bill? If the appellant had a valid title to the premises, growing out of a sale of the premises for the non-payment of taxes or otherwise, and such title had been set up in the plea, it would have been the duty of the court on the argument to have held the plea a defense to the case made by the bill. But upon an examination of the plea, it will be found that it fails to allege that appellant had title to the property, or to set up facts which, when considered, constitute title. It is set up in the plea that the premises were sold for the non-payment of taxes, that a certificate of sale issued, that within three years the certificate was returned to the county clerk with an affidavit stating the facts relied upon for a deed, that a deed was issued and recorded in the recorder’s office of Cook county. Every fact set up in- the plea may be true, and yet it does not follow that appellant had the title to the property.
It may be true that the premises were sold for taxes, as alleged, and at the same time the tax may have been void, or the taxes paid before the sale, or there may have been no judgment for taxes, or the judgment may have been void. It may be true that an affidavit was filed with the clerk containing the facts relied upon for a deed, but the facts may have been insufficient to authorize the officer to execute a deed. If the appellant desired to rely upon the tax deeds described in the plea as title to the property, it devolved upon him to set up the execution and delivery of the deeds to him, and that under and by virtue of such deeds the title to the property became and was vested in him; or appellant, if he saw proper, might have averred in the plea that on a certain date he obtained a tax deed, and that each and every condition precedent had been performed which authorized the sale of the property, and the execution and delivery of a deed. Had this course been pursued, such facts embodied in a plea might have been regarded as a defense to the case made by the bill. But this course was not pursued, nor does the plea even allege, in general terms, that appellant had the title to the property. In the argument attention has been called to section 224, chapter 120, of our statute, which provides that deeds executed by the county clerk, where lands have been sold for taxes, shall be prima facie evidence of certain facts therein specified. We do not think this section of the statute has any bearing on the question of pleading here involved. Had appellant set up title, and had an issue been formed on the question of title, on the trial of the issue, appellant would have been entitled to avail himself of the provisions of the section of the statute; but that fact does not dispense with proper allegations of title in the plea, nor does it have any bearing on the question involved.
It is, however, claimed that the court erred in confirming appellee’s title and setting aside appellant’s title, without requiring appellee to refund the amount appellant paid at the tax sale and subsequent taxes and interest. If the appellant had set up by answer the purchase of the property for the non-payment of taxes and the payment of subsequent taxes, under the former ruling of this court, it is plain that his title could only be set aside upon being refunded the money paid out with interest, but the appellant is in no position to avail himself of that principle in this case. The appellant here interposed a plea to the bill, and.whenthe court adjudged the plea insufficient he refused to answer, but chose to abide by his plea. The only question, therefore, now presented by this record, is as to the sufficiency of the plea, and the disposition of that question disposes of the case. As to the judgment for costs, under the facts of this case, we perceive no error. The rule in Gage v. Busse, 102 Ill. 592" date_filed="1882-03-28" court="Ill." case_name="Gage v. Busse">102 Ill. 592, and Gage v. Arndt, 121 id. 494, does not apply here. The judgment of the Superior Court will be affirmed.
Judgment affirmed.