delivered the opinion of the court:
This was a bill filed by Emma J. Glos on April 17, 1911, in the circuit court of Cook county, to review for errors alleged to be apparent on the face of the record, and for alleged fraud, the'proceedings and decrees in the case of People v. Evans et al. April 18 Jacob Glos filed a cross-bill attacking the same decrees for substantially the same reasons as alleged in the original bill. " November 12, 1912, two orders were entered by the trial court, one striking the original bill of Emma J. Glos and dismissing the same at her costs, and the other striking the cross-bill of Jacob Glos at his costs. Emma J. Glos prayed and was allowed an appeal from the order dismissing the original bill and Jacob Glos prayed and was allowed an appeal from the order dismissing the. cross-bill. While'there seems to have been no joinder of these two appeals, they have been treated in the record and briefs as if they were joined.
A statement as to the litigation which this bill has been filed to review will'be found set out in Clark v. Zaleski,
April 7, 1905, the State instituted proceedings in the circuit court of Cook county, under section 253 of the Illinois Revenue law, to foreclose certain tracts alleged to be forfeited to the State, the taxes thereon having remained unpaid for four years, from 1900 to 1903, inclusive. Various owners and persons claiming an interest in the premises were made defendants, the case being entitled People v. Evans et al. In these foreclosure proceedings Jacob Glos was served but Emma J. Glos was not made a party. Jacob Glos filed an answer, admitting that he claimed an interest in the premises but denying that the same was subject to a lien of the State for taxes. The matter was referred to a master in chancery, who reported to the court, and a final decree wаs entered October 11, 1905, ordering the premises to be advertised and sold by the county treasurer unless the taxes were paid within a certain time. Jacob Glos prayed and was allowed an appeal from that decree but never perfected it. Under said decree a public sale was held by the county treasurer of Cook county, the purchaser being Walter Langlois, who was not a party to the proceedings. He assigned his certificate of sale to B. H. Collier and S. B. Tefft, who paid the taxes after the sale and up to and after the time of redemption had expired. On October 16, 1909, an order was entered by said circuit court in the case of People v. Evans et al. finding that due notice had been given of the expiration of the time of redemption and authorizing the issuance of a tax deed to the premises so sold under said foreclosure proceedings. A deed was thereafter executed by the county treasurer of Cook county to Tefft and Collier, Tefft afterwards deeding an undivided half interest to Robert Zaleski and Collier a half interest in Edwin M.. Clark. Later, Clark filed a bill for partition in the superior court of Cook county against Zaleski and others, including Jacob Glos and Emma J. Glos. Jacob Glos and Emma J. Glos both filed answers to the partition suit, denying that Clark and Zaleski were the owners of said premises. -Thereafter an order was entered dismissing said Emma J. Glos as a party from said partition suit. A decree was entered in said partition suit, finding that Clark and Zaleski were the owners in fee simple of said premises, free and clear of all claims, liens and encumbrances of defendants in said proceedings. On appeal to this court by Jacob Glos that decree was affirmed. Clark v. Zaleski, supra.
In the original bill for review filed herein by Emma J. Glos the files and proceedings in People v. Evans et al. were set up-, except the notice of the applicаtion for said order of October 16, 1909. The bill alleged that she owned an undivided one-third interest in the premises in question, acquired by quit-claim deed from her husband, Jacob Glos, dated May 29, 1902, and recorded June 2, 1902; that she had never had any notice of the foreclosure suit until in October, 1910, when she was summoned in Clark v. Zaleski, supra, in which case she averred that a trial had been had and a decree was then about to be entered. "She prayed that the proceedings and decree in People v. Evans et al. be reviewed and reversed and that she might be allowed to make her defense. The cross-bill of Jacob Glos adopted, by rеference, the statement of the pleadings and proceedings in People v. Evans et al. as set forth in the original bill of Emma J. Glos, and alleged that he and Emma J. Glos were the owners in fee of the premises; that he had no knowledge of the entry of the order of October 16, 1909, until he was served in October, 19x0, in Clark v. Zaleski. The cross-bill had substantially the same prayer for belief as did the original bill.
To the original bill Edwin M. Clark filed a general and special demurrer, alleging.that Emma J. Glos could not sustain her bill because she was not a party to the original suit; that the complainant had not performed or offered to perform the decretаl orders sought to be reviewed; that she was barred by gross laches, and had not set forth any error apparent or other reasons sufficient to authorize or justify a review and reversal of said decree as prayed for. Robert Zalesld and Walter Ranglois filed general and special demurrers setting up the same grounds as were set up' by Clark, and further alleging that said bill did not contain all the files and proceedings in the foreclosure suit. They all three filed a general and special demurrer to the cross-bill of Jacob Glos, raising practically the same points that they raised by the general and special demurrers tо the original bill.
On her first appearance in this proceeding S'. B. Tefft made a motion to strike both the bill and cross-bill from the files and dismiss the same because they were filed without leave of court first obtained upon sworn petition and due notice; because the complainant was not a party or privy of any party to said original foreclosure proceedings; because neither the complainant nor cross-complainant had performed the decretal orders sought to- be reviewed; because, subsequent to the decretal orders in the foreclosure suit, Tefft and Collier had conveyed their rеspective interests to Clark and Zaleski, between whom there had been a partition decree, which cut off all interests claimed in said foreclosure. After a hearing on this motion the circuit court struck the bill and cross-bill from the files and Emma J. Glos and Jacob Glos appealed to this court, as stated above.
It is suggested in the briefs of appellees, but not argued, that this court is without a jurisdiction on direct appeal as this case does not involve -a freehold, a .franchise, the validity of a statute or the collection of public revenue. A freehold was not involved, in the sense of the constitution and statute controlling appeals, in the original foreclosure proceedings. The supplemental foreclosure decree, however, found that the time for redemption had expired and the right to redeem was lost, and directed the county clerk to issue to said Collier and Tefft a deed for the premises. That supplemental decree involved a freehold so as to permit a direct appeal to this court. (Sanford v. Kane,
The principal question for consideration is whether of not the trial court properly struck the original bill and cross-bill from the files and dismissed the proceedings. We shall first consider this question as it applies to the original bill.
The bill alleges, and all counsel concede, that Emma J. Glos was not a party to the original foreclosure proceedings which are here sought to be reviewed. Counsel for appellees contend that as she was not a party or privy to any party to the original proceedings she has no right to file this bill of review. On the other hand, counsel for appellants argue that while Emma J. Glos was not a party to the litigation she was directly and affirmatively affected by the proceedings, and therefore she had a right to file her bill. The general rule is that none but parties and privies can have.a bill of review. (3 Ency. of Pl. & Pr. 590; 16 Cyc. 521.) In Goodrich v. Thompson,
There is no' doubt that the general rule is that a stranger , to a deсree cannot file a bill of review to question that decree. If, however, the decree attempts to adjudicate his rights, even though he is not a party, then is he so affected by the decree as to permit him to file a bill of review? There are authorities which tend to support the contention that if a person is prejudiced or aggrieved by such decree he can file a bill of review. 2 Beach on Modern Equity Practice, sec. 881; Peak v. Percifull,
Appellants contend that under the reasoning of Bruschke v. Der Nord Chicago Schuetzen Vercin,
A person is prejudiced or aggrieved, in the legal sense, when a legal right is invaded by the act complained of or his pecuniary interest is directly affected by the decree or judgment. (2 Cyc. 1266, and cases cited; State v. Central Vermont Railroad Co. 71 Atl. Rep. [Vt.] 193; Wiggin v. Swett, [Mass.]
As has been stated, all parties concede that the record in the foreclosure proceedings shows that Emma J. Glos was not made a party thereto. The answers of some of the defendants in those proceedings insisted that the original bill therein was defective because she was not made a party. It is contended that the - supplemental proceedings referred to her in such a way as to place a cloud upon her title to the real estate in question. The supplemеntal decree of October 16, 1909, stated that she had been notified of said supplemental proceedings by leaving a copy of the notice with her, calling attention to the fact that the supplemental decree would be applied for in said circuit court. Counsel for appellants contend that no- such notice was ever served upon her. They argue, however, that it was. optional with the purchaser at the tax foreclosure sale whether supplemental proceedings would be instituted; that he could have applied to the county clerk for a deed without said supplemental proceedings being instituted. This position is in accord with the holding of this court‘in Clark v. Zaleski, supra. The opinion states with reference to the advisability of such supplemental proceedings (p. 82) : “The practical advantages of such course are apparent. Such an order, being within the jurisdiction of the court, is binding upon parties and privies, and precludes them from afterwards re-litigating all questions that were or might have been raised in such proceeding.” As Emma J. Glos was not a party or privy to the original foreclosure proceedings the alleged notice as to said supplemental proceedings could not in any way preclude her from questioning the finding either in said original or supplemental proceedings.
When it is necessary, in foreclosure proceedings held under section 253 of the Revenue act, to make a person a party thereto to adjudicate his rights or interests in property, if he is not made a party he cannot be precluded as to his rights or interests by a statement in the supplemental proceedings, entered after the sale of the property, that he has had notice of such supplemental proceedings. Not being a party to the decree of foreclosure and sale, the supplemental proceedings could have no force or effect whatever upon his rights, which would remain the same as if the foreclosure proceedings, and sale had never been had. (Wehrheim v. Smith,
A cloud on a title is a semblance of a title, either legal or equitable, which, if valid, would affect o-r impair the title but which can be shown by extrinsic evidence to be invalid. (Allott v. American Strawboard Co.
The decree of October 16, 1909, in said foreclosure proceedings cannot be considered, standing by itself, in order to decide whether it is a cloud uрon the title of appellant Emma J. Glos, but must be examined in connection with all the other pleadings in that case, both original and supplemental, for its force or lack of force can only be shown by a comparison with such other pleadings. Both the bill and cross-bill herein pray that all the proceedings in the foreclosure cause “be reviewed and reversed.” “In England the decree embodies the substance of the bill, pleadings and answers. In the courts of the United States the decree usually contains a mere reference to the antecedent proceedings, without embodying them. But for the purposе of examining all errors of law, the bill, answers and other proceedings are, in our practice, as much a part of the record before the court as the decree itself, for it is only by a comparison with the former that the correctness of the latter can be ascertained.” (Story’s Eq. Pl.—xoth ed.— sec. 407; Dexter v. Arnold,
Considering all the pleadings in said foreclosure proceedings along with said decree of October 16, 1909, it is» clear that said decree could not bind or affect in any way the interests of Emma J. Glos, as the record shows that she was not a party to the proceedings, and further shows that it was alleged in the answer (in said foreclosure proceedings) of one of the defendants that the bill therein was defective because she was not made a party. These pleadings show clearly, on their face, that said decree, so far as it affected Emma J. Glos’ interests, was totally void, so that any person “inspecting the record and comparing it with the law is at once apprised of the illegality.” (2 Cooley on Taxation,—3d ed.—1448.) The foreclosure proceedings being invalid on their face so far as they attempt to affect the rights of Emma J. Glos, the decree in question is no cloud.on her title and there is no occasion for equitable interference. “It would be idle to set in motion the machinery of the law to. nullify that which appears on its own face to be null.” (Meloy v. Dougherty,
The argument of counsel that Bruschke v. Der Nord Chicago Schuetzen Verein, supra, is conclusive of their contention that the finding in the said supplemental foreclosure decree is a cloud upon the title cannot be sustained. In that cáse the original proceedings tended to show that the Verein had been made a party thereto by a solicitor entering its appearance. It is very clear that from this entry of appearance and from the finding in the decree that the Verein had been served with process, аn inspection of the original records in that case would indicate that the Verein was a party. The evidence showing that it was not made a party by entry of appearance was brought out on the hearing of the bill for review by evidence dehors the record in the original proceedings. In that case, under the authorities cited here, the original decree, taken in connection with the other pleadings, would be á cloud upon the title of the property of Der Nord Chicago Schuetzen Verein.
There is a further reason why the court’s decree was proper. A bill of review for error apparent on the face of the record may be filed without leave of court. If the object of a bill is to impeach a decree for fraud it may also be filed without leave, it being regarded as an original bill in the nature of a bill of review. A bill of review, however, upon the ground of newly discovered evidence, cannot be filed without first obtaining leave, and such leave is necessary in cases .where the two grounds, errors of law on the face of the record and newly discovered evidence, are joined. Schaefer v. Wunderle,
Certain allegations of the original bill can only be established by extrinsic evidence, among others the following:
19. “The affidavit of Andrew M. Strong that Emma J. Glos was not the owner of said premises, or any of them, was false and untrue, and was nót and is not binding upon your oratrix, Emma J. Glos.”
29. “The affidavit of Clarence A. Lawson, dated August 31, 1908, as to service on Willis V. Elliott, is untrue, false and fraudulent.”
It is not argued that these allegations charge fraud, but it is contended that they are preceded by the statement, “your oratrix alleges that in said record and proceedings aforesaid in the said case of the' People of the State of Illinois vs. Bynden Evans there is. mаnifest error apparent, in this, to-wit,” and said allegations numbered 19 and 29, along with thirty-four other allegations, come under said heading, so that it is obvious that the pleader intended to allege that all of these thirty-six assignments of error were for errors apparent on the face of the record. We do not agree with this. But if it be conceded that said points 19 and 29 should be construed as referring only to- errors apparent on the face of the record, there is another allegation which requires evidence dehors the record to sustain it which is not among the thirty-six enumerated points coming under said heading. Said allegation is as follows“And ■your oratrix further shows untó your honors that it is fraudulently and falsely stated in said petition of B. H. Collier and S. B. Tefft, in the affidavit of Andrew M. Strong thereto attached, that your oratrix, Emma J. Glos, was not in truth and in fact the owner of said lots or any of them, or of any part or parts thereof, during the redemption period from December 8, 1906, to September 9, 1908, whereas your oratrix was during all of said period the owner of an undivided one-third interest in all of said lots, which was well known to the said Andrew M. Strong, who was during that time engaged in the practice, of law in the city of Chicago, and who had access and knowledge of the existence of such deed by аctual knowledge thereof, and also by reason of the fact that the same was on record in the recorder’s office of Cook county, Illinois, as above described.”-
Counsel for appellants concede that these allegations depend upon extrinsic evidence, but they further contend that even though it be admitted that such allegations do not refer to errors apparent on the face of the record or to fraud, they obviated the objection thereto by "offering, before the court struck the original bill and cross-bill from the files, to amend the original bill so as to show clearly that it was based only on errors apparent on the face of the record and for fraud in obtaining said decree. The offer tovamend did not obviate the objection. In Ricker v. Powell,
‘ Counsel for appellants contend that this, last question could only be raised by demurrer and not by motion. This is not-the law. If a bill requiring leave is filed without leave having been first obtained, “it may be demurred to for irregularity or it may be ordered taken off the file, the application for which purpose is made by motion,” etc. 2 Daniell’s Ch. Pl. & Pr. (6th Am. ed.) 1579, and cases cited; Buckingham v. Corning, 29 N. J. Eq. 238; Hodson v. Ball, 11 Sim. Ch. 456; Cole v. Littledale, supra; 3 Ency. of Pl. & Pr. 589.
There remains to be considered the question whether the cross-bill of cross-complainant, Jacob Glos, was also properly stricken from the files and dismissed by the trial court. The generаl rule is that the dismissal of the original bill carries with it the cross-bill. (5 Ency. of Pl. & Pr. 662, and cases cited.) The original bill here having been dismissed for want of jurisdiction, the cross-bill- must follow the fate of the original bill. Dows v. City of Chicago,
Counsel for appellants concede that the general rule is as above stated, but insist that that rule only applies when the cross-bill seeks relief by way of defense, and not where affirmative relief is sought as to collateral matters properly presented in connection with the original bill. (Jessup v. Illinois Central Railroad Co. 43 Fed. Rep. 483 ; Story’s Eq. Pl.—10th ed.—sec. 399, and note.) On the facts before us the cross-bill here does not come within this exception to the general rule. But if it be granted that it comes within such exception, there is another sufficient reason why the cross-bill was properly dismissed on motion. If the cross-bill • could stand after the original bill was dismissed it must be because, in legal effect, it is in its nature an original bill. Necessarily, then, when filed as a bill for review the same rules would obtain as to securing leave of court. The cross-bill, as already stated, sets up facts showing newly discovered evidence, the same as did the original bill of appellant Emma J. Glos. The cross-bill set up also additional facts dependent upon newly discovered evidence dehоrs the record not found in the original bill, among others the following:
42. “The said tax sale was not conducted in the manner required by law, because the said real estate was not sold in its consecutive order.”
47. “Diligent search and inquiry was not made as to the owners or occupants not served with notice on the tenns required by law on owners and occupants.”
If this be considered an original bill, the allegations of newly discovered evidence being united with the allegations as to errors apparent on the face of the record, leave must have been first obtained before it was filed. Such leave not having been obtainеd, it was properly dismissed on motion.
Counsel - for appellants further contend that the bill and cross-bill should not have been stricken on motion of appellee Tefft, because it was apparent from the demurrers filed by certain of the appellees, as well as by the motion of said Tefft to dismiss, that she had no interest in said property, having transferred her rights to other appellees. The amended bill and cross-bill made appellee Tefft a party, alleging that she had certain interests. As the court had not made any finding to the contrary she was entitled to make the motion to strike.
Many other points are raised and argued in the briefs which it is unnecessary to consider or decide.
The decree of the circuit court will be affirmed.
Decree affirmed.