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GAGE V. BANI, 141 U. S. 344 (1891)

U.S. Supreme Court

Gage v. Bani, 141 U.S. 344 (1891)

Gage v. Bani

No. 20

Submitted January 29, 1891

Decided October 26, 1891

141 U.S. 344


Where a tax deed in Illinois is relied on as evidence of paramount title, it is indispensable that it be supported by a valid judgment for the taxes and a proper precept authorizing the sale.

It is well settled in that state that a tax title is purely technical, and depends upon a strict compliance with the statute, and that the giving of the particular notice required by the statute is an indispensable condition precedent to the right to make a deed to the purchaser or his assignee.

The owner of land in Illinois sold for the nonpayment of taxes or of special assessments is entitled to be informed in the statutory notice whether the sale was for the nonpayment of a tax or of such an assessment and a notice which informs him that the sale was made "for taxes and special assessments, authorized by the laws of the State of Illinois" is a defective notice.

The right of an occupant of land in Illinois sold for the nonpayment of taxes or special assessments to personal notice of the fact of sale before the time of redemption expires is expressly given by the Constitution of Illinois, and is fundamental, and upon a direct issue whether such notice was given, the owner testifying that he did not receive notice, the evidence should be clear and convincing that it was given as required by law before the tax title can be held to be paramount.

The Court stated the case as follows:

The appellee, Bani, claiming to be the owner in fee and being in the actual possession of lots 12 and 13 in block 2 of Lewis Heintz's subdivision of 24 acres in the Town of Lake, Cook County, Illinois, brought this suit December 6, 1883, for a decree setting aside and declaring void three several tax deeds covering those lots and which were held by the defendant, Asahel Gage.

It is alleged in the bill that the plaintiff derived title by warranty deed from Peter Caldwell and wife, of date May 15, 1882, the consideration being $3,000; that his purchase was without notice of any adverse claim or title; that from the

Page 141 U. S. 345

27th day of April, 1868, until such purchase, Caldwell was the owner in fee of the premises, with a complete title deducible of record, and in actual and continued possession, under claim and color of title, paying taxes thereon for a period of more than seven years, and that prior to his purchase, to-wit, on the 27th of March, 1880, the plaintiff took possession as Caldwell's tenant, and in that capacity occupied the premises up to the date of the deed to him, thereafter holding and occupying them as owner, under claim and color of title, paying all taxes and assessments legally made thereon.

The tax deeds held by Gage against which the bill was particularly aimed were dated, respectively, July 3, 1880, June 30, 1880, and July 6, 1880. The one of July 3, 1880, was based upon a judgment of the county court at its July term, 1877, for the amount of the third installment of a special assessment, warrant 36, assessed by authority of the Town of Lake, which, with interest and costs, amounted to $6.98; the one of June 30, 1880, upon a judgment for the fifth installment of South Park assessment for the year 1876, amounting, with interest and costs, to $3.38, and the one of July 6, 1880, upon a judgment for state, county, and city taxes for 1876, amounting, with interest and costs, to $16.88.

The bill also alleges that the plaintiff, having learned for the first time in March, 1883, of these tax deeds, immediately offered to pay any sum reasonably necessary to cover all expenditures by Gage for taxes, costs, and disbursements, together with interest and penalties, if a quitclaim deed was made to him, and that Gage refused such offer, pretending that the lots belonged to him.

The plaintiff, after setting out numerous grounds upon which he assails the validity of these tax sales and deeds and renewing his offer to reimburse the defendant for all sums paid on account of taxes and assessments upon the property, with damages and penalties, prayed that the tax deeds, which were fair upon their face, be declared void and decreed to be surrendered for cancellation.

The defendant pleaded in bar of the suit that on the 24th of July, 1876, the County Clerk of Cook County, under the provisions

Page 141 U. S. 346

of chapter 120 of the Revised Statutes of Illinois, executed and delivered a tax deed conveying to him, his heirs and assigns forever the title to the lots in the bill mentioned, and that afterwards, on the 3d day of August, 1876, that deed was filed for record, and recorded in the proper office.

This plea was held to be insufficient, and the defendant, with leave of the court, filed an answer, relying in support of his claim to the lots on the tax deed of July 24, 1876, as well as upon

"divers other good and sufficient tax deeds, all of which are duly recorded in the recorder's office of Cook County aforesaid, and are matters of public record, each of which is based upon a valid judgment and precept."

The answer makes no express reference to the deeds of July 3, June 30, and July 6, 1880

The plaintiff having paid into court the sum of $150 for the defendant on account of tax sales, costs, and disbursements, taxes, and interest, it was adjudged that he was the owner in fee of the lots in question, and that the tax sales and deeds under which the defendant claimed title were void.

By the statutes of Illinois in force when the sales were made, upon which the tax deeds in question were based (Rev.Stats. 1889, title Revenue, pp. 1145, 1146), it was, among other things, provided:

"SEC. 216. 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 any county or incorporated town or city within the same, or at any sale for taxes or levies otherwise, by the laws of this state, shall be entitled to a deed for the lands of 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 and partly printed notice of such purchase on every person in actual possession or occupancy of such land or lot, and 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; also the owners of or parties interested in said land or lot, if they can, upon diligent inquiry, be found in the county, at least three months

Page 141 U. S. 347

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, cannot be found in the county, then such person or his assignee shall publish such notice in some newspaper printed in such county, and, if no newspaper is printed in the county, then in the nearest newspaper that is published in this state to the county-seat of the county in which such land or lot is situated, 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."

"SEC. 217. 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 shall by him be filed with the officer having custody of the record of the lands and lots sold for taxes and entries of redemption in the county where such lands or lots shall lie, to be by such officer entered upon the records of his office and carefully preserved among the files of his office, and which record or affidavit shall be prima facie evidence that such notice has been given. Any person swearing falsely in such affidavit shall be deemed guilty of perjury, and punished accordingly."

"SEC. 219. At any time after the expiration of two years from date of sale of any real estate for taxes or special assessments, if the same shall not have been redeemed, the county clerk, on request, and on the production of the certificate of purchase, and upon compliance with the three preceding sections, shall execute and deliver to the purchaser, his heirs or assigns, a deed of conveyance for the real estate described in such certificate. "

Page 141 U. S. 348

"SEC. 225. Unless the holder of the certificate for real estate purchased at any tax sale under this act takes out the deed, as entitled by law, and files the same for record within one year from and after the time for redemption expires, the said certificate or deed, and the sale on which it is based, shall, from and after the expiration of such one year, be absolutely null. If the holder of such certificate shall be prevented from obtaining such deed by injunction or order of any court or by the refusal of the clerk to execute the same, the time he is so prevented shall be excluded from the computation of such time. Certificates of purchase and deeds executed by the county clerk shall recite the qualifications required in this section."

These regulations were established in obedience to the fifth section of article 9 of the Constitution of Illinois of 1870, providing:

"The right of redemption from all sales of real estate for the nonpayment 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 reasonable notice to be given to the owners and parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes of 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."

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