209 Ill. 517 | Ill. | 1904
delivered the opinion of the court:
It is urged- that the proof does not show that complainant was the owner of the real estate described in the bill. We have frequently held that in a suit to remove a cloud from the title it is not necessary for the complainant to prove title with the same strictness as in an action of ejectment. (Glos v. Randolph, 138 Ill. 268; Pease v. Sanderson, 188 id. 597; Glos v. Boettcher, 193 id. 534.) The proof in this case shows that at the time the bill was filed complainant was in the possession of the property, claiming in good faith to be the owner thereof, under a deed conveying the same to him. This is sufficient proof of title where the only cloud which complainant seeks to remove is a tax deed. The evidence here is sufficient to sustain the finding in the decree that the complainant is the owner of the property.
The sale upon which the deed involved herein is based was advertised for August 1, 1898. Section 194 of chapter 120 of Hurd’s Revised Statutes of 1901 requires that “on the day advertised for sale, the county clerk * * * shall make a certificate, to be entered” on the record, following the order of the court, that such record is correct and that judgment was rendered upon the property therein mentioned for taxes, etc. This certificate was made by the clerk in this instance on July 13, 1898, instead of on August 1 of that year. The tax deed is therefore invalid. Glos v. Randolph, supra.
On the day the bill herein was filed, January 20,1902, but prior to the filing thereof, complainant tendered to Jacob Glos $75 in payment of the amount paid at the tax sale, subsequent taxes, interest and costs, which was slightly in excess of the amount due to Glos under section 224 of chapter 120 of Hurd’s Revised Statutes of 1901. The tender was" not accepted. Complainant, at two o’clock on the same day, filed his bill, and kept the tender good by paying the same to the clerk. Thereafter, on the same day, appellant Emma J. Glos, wife of appellant Jacob Glos, filed for record a quit-claim deed from Jacob Glos, conveying to her an undivided one-half of the premises described in the bill. This deed is dated January 2, 1902, and acknowledged before one Timke, the agent of Jacob Glos, on January 20, 1902. Later, Emma J. Glos was made a party defendant by supplemental bill. Under these circumstances it is urged that the tender was not made to the proper parties, and that it was erroneous to render a decree for costs ag'ainst Jacob Glos and to leave Emma J. Glos to pay her own costs. The tender was made to the person who, by the record, was shown to be the holder of the tax title. Complainant had no notice, constructive or otherwise, that Jacob Glos had conveyed to Emma J. Glos. To hold, under such circumstances, that he must make a tender to her or be liable for costs would virtually deprive him of the right of making a tender before bringing suit. The grantee in such a deed, who is not in possession, can protect himself from any injurious consequences from the rule here applied by promptly recording his deed upon its delivery to him.
It is also assigned as error that the cause should have been referred to a master for the purpose of ascertaining the amount due as redemption money. Under the authority of Glos v. Boettcher, supra, this was unnecessary.
Emma J. Glos insists that no notice was given to her of this cause being placed on the trial calendar in the court below. For that reason she moved to strike the cause from that calendar, and assigns the denial of her motion as error. The record does not disclose any rule of court showing necessity for such notice, and there is no statute requiring it. The error is therefore not well assigned.
Appellee has filed an additional abstract in this court, and moves that the cost thereof be taxed herein. The necessity for this additional abstract appears, and the motion will be allowed.
The decree of the circuit court will be affirmed.
Decree affirmed.
