| Ill. | Sep 27, 1887
delivered the opinion of the Court :■
This was ejectment, by appellant, against appellee, for a. certain- tract of land in Ford county. Appellee, on the trial, gave in evidence a tax deed, and numerous questions have been discussed in argument in relation to the sufficiency of that deed. We have given these questions as careful consideration as we can, and - the following are our conclusions thereon:
First—Counsel for appellant makes a calculation, showing, ■as he claims, that the amount for which the land was sold at the tax sale was too large, by forty-four cents. There is an •error in counsel’s addition, of ten cents. His figures really make, when added, only thirty-four, instead of forty-four, cents, and that thirty-four cents is authorized by section IS of the act of March 29, 1872, which both sides agree is applicable to this sale, thus: “Making list delinquent land for judgment, three cents; making list delinquent land on precept, sale and redemption record, three cents; making list to auditor, of land sold, three cents; issuing certificate of sale, twenty-five cents; total, thirty-four cents.” (See Laws of 1871-72, pp. 432, 433.) These shall, by the express language of the statute, “be charged as costs against the delinquent property, and be collected with the delinquent taxes thereon.”
Second—It is contended it nowhere appears that the land was sold at the time and place required by law. But section 224 of the Revenue law (Rev. Stat. 1874, p. 895) provides that tax deeds, executed pursuant to its provisions, shall be prima facie evidence in all controversies and suits in relation to the right of the purchaser, his heirs or assigns, to the real •estate thereby conveyed, of the following facts: “Fourth, that the real estate was advertised for sale in the manner and for the length of time required by law; fifth, that the real estate was sold for taxes or special assessments, as stated in the •deed; sixth, that the grantee in the deed was the purchaser or assignee of the purchaser; seventh, that the sale was conducted in the manner required by law.” The deed here appears to have been executed pursuant to the provisions of this statute, and the burden is therefore upon appellant to overcome the prima facie case made by the deed. He has not proved that the land was not sold at the time and place required by law.
Third—It is contended the description is void for uncertainty. It is: “W. side N. j- S. E. N. W. 10 acres, sec. 8, T. 23, E. 10,—quantity sold, 10 acres. ” We think, on the authority of Law v. The People ex rel. 80 Ill. 268" date_filed="1875-09-15" court="Ill." case_name="Law v. People ex rel. Miller">80 Ill. 268, and Fowler v. The People, 93 id. 116, this was sufficient. It is not a question of what possible construction might be put upon these initials, but, what construction would be given them by persons familiar with descriptions of real estate. They are to be construed with reference to the known customs of those whose duties are to describe real estate for purposes of taxation. We are to assume that some tangible and definite quantity was intended to be described, and we are not to be ignorant, as a court, of what we would understand as individuals. We can not, therefore, understand that “W. side” means, as counsel contend we might, “wrong side, ” or “wet side,” because such words are never used in describing real estate for taxation. Such words, in that connection, would be utterly senseless. We can take notice that, by custom, there is always given to the initial “W, ” in a connection like the present, the meaning of “west.” Any one familiar with tax books understands this, as well as if the -word “west” were written in full, and this being so, the description is sufficient for all purposes.
Fourth—Some objection is urged that it does not appear that the east side of the described subdivision of the congressional survey was sold. It appears from the record that the north half of the south-east quarter of the north-west quarter, above described, contained only seventeen acres, and that, after judgment and before sale, the amount charged against the east seven acres was paid, so, necessarily, it left to be sold only the ten acres on the west side of the tract. This, we think, appears sufficiently from the memorandum on the judgment record: “E. 7 pd.—Amount paid before sale, §6.60.” But, waiving this, we have seen that the presumption from the deed is, that the sale was conducted in the ‘Sj, manner required by law, and so, necessarily, that the part sold was properly sold, and there is nothing before us to overcome this presumption.
Fifth—It is contended that the notice of the expiration of the time when the right to redeem will expire, is insufficient, in not clearly designating R. Pollock as the purchaser, and also because it omits to state for what year the land was taxed. The notice reads thus:
“ To whom it may concern:
“You are hereby notified that at a sale of real estate made by the county treasurer at the court house in Paxton, in the county of Ford and State of Illinois, we did, on the 19th day of June, A. D. 1877, purchase the following described real estate for the taxes and costs thereon for the year 1876, and that the time for redeeming said real estate will expire on the 19 fch day‘of June, A. D. 1879, to-wit. ” (Here follows a description of the real estate.) Then the notice proceeds thus: “Als'o, that at the place aforesaid, we did, on the 22d day of June, A. D. 1877, purchase the following real estate, and that the time for redeeming said real estate will expire on the 22d day of June, A. D. 1879, to-wit:
Description - - - - - - - 10 acres
Subdivision of sections W. side, N. S. E. N. W. 10 acres
Section........8
Town - 20
Range..... 10
To whom assessed.....James Mix.
“E. F. Earl, and E. F. Earl, assignee of John P. Day; H. McCulloch, L. Dunlap, R. Pollock, J. S. Fredrick, Chas. Bogardus and E. F. Asay. ”
It is quite apparent that the year for which the property thus described is taxed, is not stated. There is no reference, ■directly or indirectly, after the word “also,” to the word 1876, and the statements with reference to the different tracts of land are as distinct as if they were in different affidavits. The statute provides (sec. 216, Revenue act, Rev. Stat. 1874,) that it shall be stated in this notice when the land or lot was purchased, in whose name taxed, the description of the land ■or lot, for what year taxed or specially assessed, and when the time of redemption will expire. This notice is to be given by the purchaser, or the assignee of the purchaser, but it is not required that it shall describe who was purchaser; and what the statute requires, but no more, it is essential that the notice shall contain. This notice, it will thus be seen,-is defective and insufficient, in omitting to state for what year this land was taxed. It omits also to state to whom it was taxed, but it states that it was assessed to James Mix, which, in that connection, we deem equivalent in meaning.
Sixth—Numerous objections are urged against the sufficiency of the affidavit of compliance with the statute. That these objections may be clearly understood, it will he necessary to repeat the constitutional and statutory provisions under which they are urged.
It is provided by section 5, article 9, of our State constitution, that “the right of redemption from all sales of real estate for the non-payment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested in such real estate, for a period of not less than two years from such sales thereof. And the General Assembly shall provide, by law, for notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided, that occupants shall, in all cases, be served with personal notice before the time of redemption expires.” And it is also provided by section 216, of chapter 120, (Eev. Stat. 1874,) that “hereafter no purchaser, or assignee of such purchaser, of any land, town or city lot, at any sale of lands or lots for taxes or special assessments, due either to the State or county, or incorporated town or city within the same, or at any sale for taxes or levies authorized by the laws of this State, shall be entitled to a deed for lands or lots so purchased, until the following conditions have been complied with, to-wit: Such purchaser or assignee shall serve, or cause to be served, a written or printed, or partly written or partly printed, notice of such purchase, on every person in actual possession or occupancy of such land or lot; also the person in whose name the same was taxed or specially assessed, if, upon diligent inquiry, he or she can be found in the county, * * * at least three months before the expiration of the time of redemption on such sale, in which notice he shall state when he purchased the land or lot, in whose name taxed, the description of the land or lot he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire. If no person is in actual possession or occupancy of such land or lot, and the person in whose name the same was taxed or specially assessed, upon diligent inquiry can not be found in the county, * * * then such person, or his assignee, shall publish such notice in some newspaper printed in such county, * * * which notice shall be inserted three times,—the first time not more than five months, and the last time not less than three months before the time of redemption shall expire.” Then the next section (217) reads as follows: “Every such purchaser or assignee, by himself or agent, shall, before he shall be entitled to a deed, make an affidavit of his having complied with the conditions of the foregoing section, stating particularly the facts relied on as such compliance,—which affidavit shall be delivered to the person authorized by law to execute such tax deed, * * * and which * * * affidavit shall be prima facie evidence that such notic'e has been given. ”
First—It is objected that the description in this affidavit-is too defective to warrant a deed. This objection has been shown, under a point before considered, untenable.
Second—It is contended that the statute makes a distinction between actual possession and occupancy, and that though noque may have been in the actual possession of the land, it-Was in the occupancy of James Mix, upon whom there should have been service of notice. This is not tenable. The words-“possession” and “occupancy,” as used in the 216th section, are clearly convertible, and the word “actual” qualifies each. This would seem sufficiently manifest from the reading of -the-section. It is assumed thereby, that there can be personal service upon the person in possession or occupancy," but if a person may be in possession or occupancy, and yet be beyohd the limits of the State, or where he can not be found, this is impossible. The actual possessor or actual occupant can be personally served, but a person having merely a constructive-possession or a constructive occupancy, may be where it is impossible to make personal service upon him.
Third—It is contended, that if any person was in the actual occupancy or possession at any time before the expiration of the time of redemption, such person is entitled to notice,— that this is the guaranty of the constitution, and the General Assembly can not dispense with it. It will be seen, by reference to the article quoted from the constitution, that the guaranty is, that the right of redemption shall exist in favor of owners and persons interested in such real estate, for a-period of not less than two years from such salesi thereof, and that the General Assembly shall provide, by law, for notice to-be given to the owners or parties interested, of thedact of the-sale of the property, and when the time of redemption shall expire. Clearly, this means that the notice shall be given, before thé time of redemption shall expire, for the plain and manifest purpose is to prevent the right of redemption being cut off without knowledge of the sale and opportunity to redeem to the owner or party interested. Notice, to be of any value, must necessarily be long enough before the expiration of the time of redemption to enable the party to make redemption, and it is evident that, in many cases, the interests of the party would require the lapse of some days, that he might make the requisite arrangement to procure the money wherewith to redeem. The General Assembly not being restricted by the constitution as to the time when it should require the-notice to be given, might, therefore, reasonably provide, as it has, that it should be given three months before the expiration of the time of redemption. Purchasers, and persons otherwise acquiring rights in the property after the giving of such notice, would simply occupy the position of purchasers penclente lite, and be governed by principles applicable to such purchasers. Moreover, a person, to avail of this constitutional provision, must affirmatively bring himself within its letter, for a violation of it can not be presumed. He must affirmatively show that he is an occupant, "within its meaning, which ivas not done here.
Fourth—But an objection is urged that this affidavit is not shown to have been made by the purchaser or his assignee, by himself or agent, and it fails to state, as a fact, that no one was in the actual possession or occupancy of the land. These objections we deem well taken. It has been seen, section 216 requires that the notice shall be served upon the person “in the actual possession or occupancy,” but if no person is “in the actual possession or occupancy, ” notice is to be published. Plainly, these are facts, and not matters of opinion, and a party either knows what the fact is, or he has no actual knowledge. If he knows what the fact is, he must state it. If he has no actual knowledge, he is incompetent to make a statement. The affidavit must be made, also, “by every such purchaser or assignee, by himself or agent.” {See sec. -217.) This affidavit starts out thus: “ J. S. Fred-.l’ick, being duly sworn, ” etc. There is no language anywhere indicating what interest he has in the matter. He signs his name, and, it is true, adds thereafter the word “agent,” but of whom, we are left to conjecture. Its language on the subject of the possession or occupancy of the land is this : “That no person was in actual possession or occupancy of said piece or parcel of land for any period of the time from the date of said sale down to a date not more than three months before the 21st day June, 1879, within the knowledge or belief of this deponent. ” But did the deponent have knowledge upon which to base rational belief ? We are not informed. Might not any stranger, without knowledge at all, have made the same affidavit ? It would seem so.
It is said this precise affidavit was before us, and approved in Frew v. Taylor, 106 Ill. 159" date_filed="1883-03-29" court="Ill." case_name="Frew v. Taylor">106 Ill. 159. If so, our attention was not arrested by this feature of it, as is manifest from the opinion, and nothing therein said precludes us from now considering it.
Some other objections are urged which we do not deem tenable, nor of sufficient importance to merit discussion.
In conclusion, we have been requested to pass upon the question whether a title obtained after ejectment commenced, is admissible in evidence on behalf of the defendant. It is enough to say, no such question arises upon this record. No error assigned by appellant raises it, and no cross-error is assigned upon behalf of appellee. Any opinion we might express upon it, therefore, would be gratuitous, and not conclusive upon the parties or the court.
For the reasons given, the judgment is reversed and the cause remanded.
J udgment reversed.