103 Ill. 528 | Ill. | 1882
Lead Opinion
Craig delivered the opinion of the Court:
The property in question, consisting of the north half of lots 13 and 14, Bailey’s subdivision of a certain twenty-acre tract in Hyde Park, Cook county, Illinois, was sold on the 9th day of October,-1874, in payment of a special assessment made by the village of Hyde Park, known® as No. 7, for the purpose of constructing a brick sewer on Fifty-first street. At the sale Henry W.' Gage became the purchaser, for the sum. of $136.40. On the 5th day of October, 1876, George W. Parker, who claimed to be the owner of the property, filed thiR bill to set .aside the sale, mainly on the ground that the ordinance under which the assessment was made was illegal and void. In 1881 the complainant in the original bill filed a supplemental bill, in which, after restating the original case, he alleged, in substance, that at the annual tax sale of 1877 said half lots were again sold for certain delinquent taxes and special assessments, and that Gage became the purchaser. It was then set up that complainant had, within the time provided by law, redeemed the premises from said sales, but after the redemption was made Gage had taken out deeds on the sales. These deeds the bill prays may be set aside and canceled.
It is first urged that it was error to allow the supplemental bill to be filed, and the bill, as amended by the supplemental bill, was multifarious. The supplemental bill was a mere amendment of the original bill, which brought before the court a subsequent sale of the same land purchased by the same party. As the parties were the same,- and the same land involved, and the subject matter of .the litigation the same, we think the- amendment was proper. Nor do we regard the bill as being multifarious. Story (sec. 271) says: “By multifariousness in a bill is meant the improperly joining in one bill distinct and independent matters, and thereby confounding them, as, for example, the uniting in one bill of several matters perfectly distinct and unconnected, against one defendant, or the demand of several matters of a distinct and independent nature, against several defendants in the same bill.” The matters in the original bill and supplemental bill were not distinct and unconnected. The whole controversy in the case is in regard to the same land, and in reference to taxes, and we perceive no good reason why the whole matter may not properly be united in one bill.
It is next urged that complainant failed to prove title to the premises. It is alleged in the bill that complainant owned the premises, and denied in the answer. Of course complainant was bound to prove every material allegation in the bill which was denied. This was not, however, a mooted question in the case, and appellee’s evidence, that he “purchased the property originally with his own money from E. Bailey,” in .connection with the deed made to him, may be regarded as sufficient.
It is next urged that the decree is erroneous, because complainant neither alleged nor proved possession of the premises, or that the same were unimproved or unoccupied, or that the defendant was not in possession thereof. If this was a bill solely to quiet title or remove a cloud from the title, then, under sec. 50, Rev. Stat. 1874, page 204, and the ruling in Hardin v. Jones, 86 Ill. 313, the point would be well taken. Such, however, is not the case. The object of the bill, as originally filed, was not to quiet title or remove a cloud, but to enjoin the execution and delivery of a deed upon an alleged void special assessment. The court, as a court of equity, acquired jurisdiction to grant the relief under this head, and the fact that an amendment was subsequently made to the bill, under which other relief was asked, did not deprive the court of jurisdiction to proceed and grant complete relief. It is a familiar rule in equity, that where the court acquires jurisdiction for one purpose; it may go on' and do complete equity between the parties. This case does not form an exception to the rule.
The ordinance under which the assessment was made, provided: “Whereas, heretofore, oh the 1st day of July, 1871, an ordinance was adopted by the town of Hyde Park, providing for the construction of a brick sewer on Fifty-first street, from Lake Michigan to State street, as set forth in the following ordinance, the cost of which was estimated at $75,000, the actual cost of which will exceed the estimated cost; now, therefore, be it ordained, that the following improvement be completed: That a sewer be constructed on Fifty-first street, from Lake Michigan to State street, said sewer to be of sewer-brick; inside diameter five feet from Lake Michigan to Hyde Park avenue; four feet nine inches from Hyde Park avenue to Madison avenue; four feet six inches from Madison avenue to Woodland avenue; four feet three inches from Woodland avenue to Drexel avenue; four feet from Drexel avenue to Cottage Grove avenue; three feet nine inches from Cottage Grove avenue to the center of the park; three feet six inches from the center of the park to Kankakee avenue; three feet three inches from Kankakee avenue to Indiana avenue; three feet from Indiana avenue to Michigan' avenue; two feet nine inches from Michigan avenue to Wabash avenue; and two feet six inches from Wabash avenue to State street,—suitable man-holes and catch-basins to be built, and that a permanent and suitable protection at the lake outlet be constructed, and connected with said sewer; that the cost of said improvement be defrayed by a special assessment, to be made in accordance with law; that commissioners be appointed to estimate the cost of said improvement.”
The 19th section of article 9 of the act in relation to .cities, villages and towns, under which the town of Hyde Park passed the ordinance, declares: “Whenever such local improvements are to be made wholly or in part by special assessment, the council, in cities, or board of trustees, in villages, shall pass an ordinance to that effect, specifying therein the nature, character, locality and description of such improvement. ” It is contended that this ordinance did not comply with the requirements of the section of the statute supra, and hence the assessment was illegal, under the ruling of this court in Lass v. Chicago, 56 Ill. 354, and other like cases. We shall not, however, stop to pass upon the validity of the ordinance, as complainant is not in a position to question its validity. It appears that the assessment was made under the ordinance, and a return made to the county court of Cook county, where, on the 24th day of November, 1873, after due notice, it was confirmed, except as to the land of certain persons who appeared and filed objections, complainant not being one of them. Is complainant concluded by the judgment, of confirmation?
In People v. Brislin, 80 Ill. 423, where it was contended that the assessment was illegal, because not on contiguous property, it was said: “This question, and all others bringing up the levy and assessment, have been passed upon by the circuit court, and are res judicata, and can not now be made in this court. Upon these there is a judgment passed by a court of competent jurisdiction, and there they must rest.” This case has been followed by a number of other decisions, where the same doctrine has been announced. Lehmer v. The People, 80 Ill. 601; Prout v. The People, 83 id. 154; Chicago and Northwestern Ry. Co. v. The People, id. 467; Andrews v. The People, id. 529.
If the assessment was illegal from the fact that it was based upon an insufficient ordinance, it was the duty of the complainant in the bill to appear before the county court when the application was made to confirm the assessment, and there make the objection; but as he failed to do so, this judgment of the county court, when called in question collaterally, must be regarded as conclusive.
We now come to that branch of the case made by the supplemental bill. In 1877 the half lots became delinquent for State and county taxes, and for certain special assessments which had before that time been levied against the property. The county collector, as required by the statute, made application to the county court for judgment against the half lots, and for an order of sale in satisfaction of the taxes and special assessments then due and unpaid. Judgments were obtained, and a precept issued. The sale of lands was commenced on the 23d day of July, 1877, and was continued until the latter part of October. The lands «in question were sold on a part of the judgments, July 28, 1877, and on another portion, August 14, and on the remaining judgments, September 3, 1877. It appears, from the evidence, that the sale was regularly adjourned from day to day, from the time it was commenced until the close, in October, and that the lots in question were sold as they were reached in the regular order in ;which the sale was conducted. It is alleged in the bill that the lands were redeemed from these tax sales, and in support of this allegation certain certificates of redemption, executed by the county clerk, were read in evidence. These certificates, defendant contends, are not authorized by the statute, and are not competent evidence to prove any fact. Whether the certificates of redemption are technically competent evidence, we shall not stop here to determine. The statute requires the county clerk to keep a book, in which it is made his duty to make a record of lands sold at tax sale, the quantity sold, name of purchaser, etc., and when the property is redeemed the clerk shall enter the name of the person redeeming, the date and amount of redemption, in the proper column. (Rev. Stat. 1874, chap. 120, sec. 197.) The book in which the sale and redemption were entered in this case was read in evidence, and if the certificates of redemption were not competent evidence, the book was, and the same facts were established by the book as were sought to be proven by the certificates of redemption.
This brings us to the question whether a sufficient amount of money was paid to the county clerk to redeem the lands from the sales. The money was paid to the proper officer, and within the time required, and he received it as a redemption, and issued certificates of redemption, which were delivered to the complainant. But it is urged by the appellant that a sufficient amount was not paid to redeem the lands from the sales. Section 210 of the Revenue law provides, that property may be redeemed from a tax sale “at any time within two years from the time the sale is made, by the owner paying to the county clerk the amount for which the land was sold, and twenty-five per cent, if redeemed before the expiration of six months; if between six and twelve months, fifty per cent; if between twelve and eighteen months, seventy-five per cent; if between eighteen months and two years, one hundred per cent. The person redeeming shall also pay the amount of all taxes and special assessments accruing after such sale, with ten per cent interest thereon from the day of payment, unless such taxes or assessments have been paid by or on behalf of the person for whose benefit the redemption is made. ” ' The complainant did not comply with this section of the statute, and can not claim a redemption under it, as neither the penalties named in the section nor the subsequent taxes were included in the amount deposited as a redemption.
The complainant, however, claims that the redemption is valid under section 211 of the Revenue law, which declares: “If any purchaser of real estate sold for taxes or special assessment shall suffer the same to be again sold for taxes or special assessment before the expiration of the last day of the second annual sale thereafter, such person shall not be entitled to a deed for such real property until the expiration of a like term from the date of the second sale, during which time the land shall be subject to redemption, upon the terms and conditions prescribed in this act; but the person redeeming shall only be required to pay, for the use of such first purchaser, the amount paid by him. The second purchaser shall be entitled to the redemption money, as provided for in the preceding section. ” It is contended by the complainant in the bill, that as the property in question was sold in July, August and September, of the year 1877, this section applied, and all he had to do was to pay the penalty on the last sale— the simple amount of the other bids and subsequent taxes. It is clear that the section of the statute cited supra, would require a person who purchased at the annual tax sale of 1877, to protect the same property from the annual tax sales of 1878 and 1879, or if he failed to do so, and allowed the property sold in 1878 or 1879, the owner could redeem from such sale by payment of the amount of the first bid. But we do not understand that the statute has any application to a case like the one here under consideration. The judgments for the State and county taxes and the special assessments in this case were all rendered at the same term, and although the land was sold in July, August and September, it was but one sale, and must be regarded in the same light as if the property which was being sold during the most of three months had all been sold in one .day.
It is not contended that any mistake of fact existed in regard to the amount of redemption money paid, and that relief may be granted on that ground, as was done in Gage v. Scales, 100 Ill. 218. But in the bill the relief is based purely on the ground that a proper redemption was made. We do not think that the evidence establishes a redemption, and the decree setting aside these deeds was erroneous.
The decree will be reversed and the cause remanded.
Decree reversed.
Dissenting Opinion
dissenting:
I do not concur in the conclusion in this case. While I think the officer making sale of this property ought regularly to have sold the same upon all of the judgments rendered at the same term, for taxes or assessments, against this land, still the record shows that this was not done. There were in fact three different sales, made in different months, the time for redemption from which began to run at three different dates. -It happens that the purchaser at each sale is the same man. That, however, can not affect the nature of the sale. I do not think we have any lawful warrant to treat these three sales as one. The purchaser’s deeds depend upon the validity of these sales. His deeds must stand or fall with these sales. To sustain his deeds they must be taken to be three separate valid sales. The relief sought is to set aside these deeds because issued after redemption. If the sales be treated as separate valid sales, then it became the purchaser’s duty, in order to entitle himself to the penalties on his first purchase, to protect the property from subsequent sale,—by paying up the other charges on which judgment had been rendered, and upon which no sale had been made. The failure of the purchaser to do this, deprived him, under the statute, of his right to the penalties under the first sale. The same is true of the second sale. (Sec. 211, chap. 120.) If this view be correct, the redemption money was sufficient. When the purchaser, at the sale made in July, suffered the property to be again sold in August, then, by this statute, the time for redemption began to run from the date of the August sale, and when he again permitted this property to be sold in September, and became the purchaser, the time for redemption began to run from the date of the September sale, and the amount required to redeem on the last days of redemption consisted, under this section, of the full redemption money on the amount of the September sale, and in addition the amount actually paid by the purchaser at each of the former sales. This amount was paid. I am not inclined to deprive an owner of his land who has literally complied with the statute as to redemption. This section applies, by its terms, to “any purchaser” at a tax sale who “shall suffer the same to be again sold” for taxes “before the end of the second annual sale thereafter.” Here the purchaser did “suffer the same to be again sold” before that time.
