| Ill. | Jun 15, 1895
A number of objections are urged by appellant as reasons why the decree of the circuit court should be reversed." It is alleged that appellee did not own the real estate described in the bill at the time he filed his bill of complaint. It is true that one can not maintain a bill to remove a cloud upon title to property of which he is not the owner, but it sufficiently appears in this case that appellee still held the legal title to the property in controversy, although he had executed a bond for deed to another party and that party was in possession under the deed. A bond for deed is only an agreement to make title in the future, and so long as it remains executory the title is vested in the original owner. The fact that appellee had executed a bond for deed to a third party who was in possession, did not prevent him from maintaining his bill to set aside a cloud upon the title to this property, so that he might fulfill the conditions of his bond and make good title to the other party.
It is also alleged that the court below erred in entering a decree canceling the tax deed without ordering that complainant first pay to the defendant the amount paid by him at the tax sale, and for subsequent taxes, and the fees for making and recording the tax deed, with legal interest on all. Section 224, chapter 120, of the Revised Statutes, provides : “That any judgment or decree of court setting' aside any tax deed procured under this act shall provide that the claimant shall pay to the party holding such tax deed all taxes and legal costs, together with all penalties, as provided by law, as it shall appear the holder of such deed or his assignors shall have properly paid or be entitled to in procuring such deed, before such claimant shall have the benefit of such judgment or decree.” The amendment filed to the bill alleged that the amount tendered was all the money which had been paid out by appellant, together with accrued interest. The answer filed by appellant made no denial of this allegation. The facts as to the amounts paid out by appellant were such matters as were within his own knowledge, and not always to be ascertained from the records, and if he was dissatisfied with the amount tendered, it was his duty to have informed the court, by answer or by proof, of the true and correct amount. No proof was offered by defendant below, and the court was authorized to find, under the pleadings, that the amount tendered was in full of the amount due appellant.
It sufficiently appears from the record in this case that the premises on which the tax deed in controversy was issued were not advertised for sale in the delinquent tax list published in the year 1890. Section 180, chapter 120, of Starr & Curtis’ Statutes, makes provision for the advertisement, before judgment, of the delinquent tax list in a newspaper published in the county, and such publication is one of the conditions precedent to a valid judgment. There being no advertisement of this property in the delinquent list of 1890 there was no valid judgment, and consequently the sale to appellant of this property for the taxes of the year 1889 was invalid, and the deed executed to him by the county clerk, under his certificate of purchase, was illegal and void, and was properly set aside by the circuit court as a cloud upon appellee’s title.
Appellant having had no valid tax deed, and having been repaid the amount of money paid out by him, to which amount he has heretofore raised no question, has suffered no injury.
Perceiving no error in the record or in the decree rendered by the circuit court, the judgment and decree of the circuit court are affirmed.
Judgment affirmed.