Miller v. Cook

10 L.R.A. 292, 135 Ill. 190

• Court: Illinois Supreme Court
• Decided: November 5, 1890
• Status: Published

Opinion

Mr. Justice Bakes

delivered the opinion of the Court:

The claim so strenuously urged by appellees, Cook and others, that the findings of fact made in this cause by the Appellate Court are final and conclusive, is wholly inadmissible. The very numerous cases cited in behalf of such contention were all actions at law, which were governed by the provisions, of the Practice act, and the rule which prevailed in them has. no application to this suit in equity. It is the practice of this court, in reviewing causes in chancery, to examine and determine for itself the truth in respect to controverted questions of fact, from the evidence in the record, and there is no legislation which militates against such practice. French v. Gibbs, 105 Ill. 523; Moore v. Tierney, 100 id. 207; Stillman v. Stillman, 99 id. 196; Joliet and Chicago Railroad Co. v. Heady, 94 id. 416; Fanning v. Russell, id. 386.

It is claimed by appellees that appellant is acting for Warren in this litigation, and is barred from bringing this suit by the adjudication in Warren v. Cook et al. 116 Ill. 199. There are circumstances in the case that look somewhat suspicious,. but they are not inconsistent with the fact that appellant is ihe only party in interest, and is litigating at his own expense and for his own benefit. The clear preponderance of the evi- ^ -dence is to the effect that he is the real as well as nominal complainant, and that there is no collusion or conspiracy in the interest of Warren. The positive and explicit testimony ■of both appellant and Warren sustains this view, and it is ■corroborated by that of Mr. Patton. The only witness whose ■evidence tends to the contrary, is Cook, one of the appellees. He testifies to a conversation with appellant, and appellant explicitly denies any such conversation. It is improbable that appellant would, pending the litigation, have voluntarily made io his principal adversary the admissions testified to. Counsel reefer in their briefs to a statement by the witness Lynch, that Warren complained to him because Miller would not divide ihe proceeds of the sale of the lots. We find no such testimony, either in the abstract or record. It would be incompeient testimony as against Miller, even if it was in the record; and even if it were competent testimony, it would seem to be more favorable to appellant than to appellees. The mere fact ihat Warren, about a year after the institution of this suit, gave to appellant a collateral mortgage on one hundred acres ■of land, the condition of which was that it was to be valid only in case Miller should lose his security upon the premises here in controversy, under the chancery proceedings pending, or in -case the property in the first mortgage should prove insufficient io secure the debt to Miller, seems to us to have but little, if any, probative force to show that this bill was filed and prosecuted in the interest of Warren. The witnesses herein were ■examined orally at the hearing, and in the presence of the chancellor, and he came to the conclusion that there was no sufficient ground for the claim of collusion, and in that conclusion we concur.

The right of appellant to prosecute a bill for an injunction and to vacate the tax sale is questioned. Section 5, of artide 9, of the constitution of 1870, expressly provides that the right of redemption from all sales of real estate for the nonpayment of taxes shall exist in favor of owners and persons interested in such real estate; and the rule is, that the right to bring suit for the purpose of setting aside a tax sale and having the deed declared void, is not confined to the original owner of the land, but may be exercised by his mortgagee or by any person who can show such an interest in the estate as would have entitled him to redeem. Blackwell on Tax Titles, sec. 238.

The case of appellant, as appears both from the allegations made in his several bills of complaint and from the proofs, is predicated upon these central facts: that almost two-thirds of the amount of the taxes for which the lot was sold had been paid by Warren, the owner, prior to the sale, and a portion of the residue of the taxes was unconstitutional and illegal.

■ It is useless now to inquire whether the bill of appellant, as it was originally’filed, was sufficient to authorize the issuance of an injunction. Suffice it to say that amendments were made to the bill, and that these amendments related back to the filing of the original bill, and that the bill, as amended, showed sufficient grounds upon its face for an injunction as well as for equitable relief. It appeared therefrom that the four lots which were included in the mortgage, along with the lot in controversy,'were worth about $1200, and that some $4500 was due upon the mortgage debt; that Warren was insolvent; that the debt would have to be collected by foreclosure'proceedings, and that the mortgaged property to be left, if Cook took the tax lot, would not pay the debt. The case made by the proofs, so far as regards the amended bill, is not as strong as the case stated in that bill; still we think sufficient appears in the evidence to show that there was, as matter of fact, equity in that bill. In our opinion the evidence does not justify the conclusion, that Warren was insolvent when the bill was filed, in 1885, to such an extent that the residue of the debt remaining unpaid after a sale of the four mortgaged lots other than the tax lot, could not have been collected by execution; but we do not think that a creditor who has taken the precaution to obtain ample security for his debt, should, before he is permitted to protect such security by an injunction, be required to either prosecute his debtor to insolvency, or affirmatively show that such debtor is wholly insolvent. It is, in the sense of the law, an irreparable injury to be deprived of the security which he has been to the pains of procuring, and the loss of which will endanger his debt. The amount of the debt when the bill was filed was $3023.92. The value of the four lots is shown to have been less than $3000, the average valuation placed thereon by the witnesses being $2737.50, and they all concur in saying that at forced sale, and with right of redemption, the lots would have brought much less. In respect to, the collateral mortgage, it is sufficient, in this connection, to remark, that it was not executed until more than nine months after the bill was filed.

The case made for appellant under the supplemental bill, by the pleadings and proofs, is even more meritorious. It shows that since the filing of the original bill the mortgage was foreclosed, and the five lots, including the lot in controversy, sold at public vendue by the master in chancery, and that in order to make them bring the amount of the debt, interest and costs, appellant was compelled to buy them himself; that they were not redeemed, and that he had received a deed for them, and was in possession of them, including the lot in controversy, under his title and as owner, and that the illegal tax sale and tax judgment were and are a cloud upon his title.

It is claimed that the supplemental bill is not based upon the same grounds that the original and amended bills were based on; that the ease made by the supplemental bill has no connection with the original cause of action, and lends it no support; and that the rule is, that when an original bill shows no ground for relief, it can not be aided by a supplemental bill, setting up matters that have arisen since the filing of the •original bill. The rule, as we understand it, is well stated by Chancellor Walworth in Candler v. Pettit, 1 Paige’s Ch. 168, and is, in substance, that if an original hill is wholly defective, .and there is no ground for proceeding upon it, it can not be .sustained by filing a supplemental bill, founded upon matters which have subsequently taken place; but that if the original ■bill is sufficient for one kind of relief, and facts afterwards •occur which entitle the complainant to other and more extensive relief, he may have such relief by setting out the new matter in a supplemental bill. In Story’s Equity Pleading, (8th ed.) sec. 336, it is said: “A supplemental bill may also ■be brought, not only to insist upon the relief already prayed for in the original bill, but upon other relief different from -that prayed for by the original bill, where facts which have since occurred may require it.” In section 339 it is said: “To entitle the plaintiff to file a supplemental bill, and thereby to obtain the benefit of the former proceedings, it must, be in respect to the same title in the same person, as stated in the original bill.” And in section 346 it is said: “When an •event happens, sphsequent to the time of filing an original bill, * * * which gives a new interest to a party, * * * the defect may he supplied by a bill, which is usually called :a supplemental bill, and is, in fact, merely so with respect to the rest of the suit, although with respect to its immediate •object * * * it has in some degree the effect of an original bill.”

Appellant filed his original bill as mortgagee, and he went into possession of the premises in controversy, and exhibited his supplemental bill, under and in respect to the title which was conveyed to him by the mortgage. We have already seen that there was equity in his amended original hill, and, within the rule, the supplementary hill was a proper supplementary bill thereto. This view is not inconsistent with the decision in Fahs et al. v. Roberts et al. 54 Ill. 192. There the original bill enjoined the sale of property levied on under execution, on the ground that such property was not liable to levy, and the supplemental bill was based on the fact, that in the meantime the judgment on which .the execution issued had been reversed, and it was held, that as the original bill showed no ground for injunction, and as the supplemental bill merely presented matters, arising since suit brought, which had no connection whatever with the ground of relief set forth in the original bill, the bills should have been dismissed. There, the supplemental bill was not germane to the original bill; but here it is otherwise.

It is claimed by appellees that appellant would not be entitled to relief in a court of equity, without it appeared that the other four lots included in the first mortgage were not sufficient to satisfy the debt, and also appeared that the one hundred acres of land covered by the second mortgage, and said,four lots, all taken together, were insufficient in value to pay the same. In regard to the mortgage on the one hundred acres of land, it may be said, that even if the appellee Cook was invested with equities in respect to the lot in controversy, it would not be required of appellant that he should give to appellee the benefit of the collateral mortgage which was executed by Warren to him for the purpose of securing him harmless in the matter of the securities first given for the borrowed money, and with the express agreement that it should be valid only in the event of the loss of a part of the security theretofore given, or in the event such security should prove insufficient, and with the implied agreement that appellant should in good faith exhaust all his legal and equitable rights and remedies to retain the security first given, before he could look to the collateral.

But waiving this, that which appellee Cook, in substance, claims, is the benefit of a marshaling of securities in his favor. The rules of equity deny to him any right to such benefit. What property rights, if any, either legal or equitable, did he get by his purchase of the lot for taxes ? He bought strictly under the operation of the rule caveat emptor; and the doctrine is, that a purchaser at a tax sale either gets the land or gets nothing, unless it be a mere color of title. It is true that under the circumstances of this particular case, Warren, the owner, was estopped from questioning either the sale or the certificate of purchase, or any deed that might have been issued thereon. But the estoppel applied only to Warren and those claiming rights derived from him subsequent to the judgment for taxes. As against appellant, whose interest in tide premises as mortgagee had accrued prior to the judgment, and sale, he got nothing whatever except a contingent equity, under circumstances of a particular remedy being sought by appellant in a court of equity, to be reimbursed for that portion of the taxes which was unpaid, and which was legally chargeable on the lot. Cooley on Taxation, 476.

A tax title is stricti juris. In Altes v. Hinckler et al. 36 Ill. 265, it was said by this court: “It is a purely technical, as. contradistinguished from a meritorious, title, and depends for its validity upon a strict compliance with the statute,” and it was there held that a court of chancery will not aid a purchaser at a- tax sale. See, also, Keepfer v. Force, 86 Ind. 81, Bowers v. Andrews et al. 52 Miss. 596, and Cogburn v. Hunt, 56 id. 718.

It was not incumbent upon appellant to first exhaust the-security afforded by the other four lots or by the one hundred acres of land. Equities arise out of contract relations, and there is no element of contract in the imposition or collection of taxes, or in the relation existing between the purchaser of property for taxes and the owner of such property or of an interest therein. A tax title is hostile to every other interest in the land, and there are no equities, except strictly in the qualified sense and to the qualified extent above indicated, between the holder of such title and the owner or holder of such interest. Appellee, by his purchase and tax certificate, acquired no equity which would authorize either him or the courts to look into the collateral transactions of appellant, for the purpose of ■ascertaining whether the latter has two or more funds to which he can resort for the payment of his debt, and compel him to first resort to the fund that will not defeat or injuriously affect the tax title. The doctrine of marshaling securities applies only as between different creditors, and between other persons who have equities and stand towards each other in a like relation, as, between sureties and creditors. 1 Story’s Eq. Jur. chap. 13; Bispham’s Eq. (3d ed.) sec. 344; Plain v. Roth, 107 Ill. 588; Prout v. Lomer, 79 id. 331; Rogers v. Meyers, 68 id. 92; Dorr v. Shaw, 4 Johns. Ch. *17. In Iglehart v. Crane & Wesson, 42 Ill. 261, and Matteson v. Thomas, 41 id. 110, and numerous subsequent eases, application has been made of the principle of marshaling, by requiring the sale of mortgaged premises in the inverse order of alienation; but appellee Cook is not the grantee of Warren, nor in privity with Mm, but claims adversely and in hostility to him.

The Appellate Court decided that “the equitable rights of Miller are not alone to be considered, but Cook also has equitable rights that ought not to be ignored,” and it reversed the •decree of the circuit court and remanded the cause,, with directions to the circuit court to dissolve the injunction and dismiss the bill and the amended and'supplemental bills. In the view that we have taken of the case, this was error.

The decree of the circuit court was also erroneous, in several respects. Among other things it found and decreed that Cook was not a party to the foreclosure suit prosecuted by Miller; that the decree therein does not bind or affect the right or interest of Cook in the mortgaged property; that Cook is entitled, by virtue of the tax judgment and sale, to receive and be vested with Warren’s title to the lot, and that he should take and receive such title subject to the lien of Miller’s mortgages, to be enforced according to the equities of Cook and Miller existing then or arising since, as may be determined hereafter by any court having jurisdiction of the parties and subject matter; and that the tax judgment and the sale thereunder should pass to Cook all Warren’s title and interest in and to said lot. This was manifest error. A simple estoppel •can not be held to have the effect of' a conveyance. The estoppel, as we have already seen, was applicable alone to Warren, and its effect was only to prevent him from questioning the validity of the tax title, and it did not transfer the title of Warren to Cook. It did not put Cook into the shoes of Warren, and make him the owner of the equity of redemption under the mortgage held by appellant.

Appellee has no property right, nor title, nor interest, either legal or equitable, in or to the lot. The only equity which •can be made available to him is one that grows out of a duty which equity imposes upon appellant. One who comes into a court of chancery asking to have a tax sale set aside as a cloud upon his title, must tender or offer to pay to the holder of the certificate of purchase the amount of the lawful and valid taxes embraced in the judgment, and all subsequent taxes paid by him, with interest thereon. (Moore v. Wayman et al. 107 Ill. 192, and cases there cited.) Appellant admitted in his bill that $41.51 was legally due and unpaid on the lot at the time of the sale, for taxes, interest and penalties, and •claimed that Warren had tendered the same to the collector before the sale, and it was by him refused; and he alleged that he was willing and able to pay whatever taxes, penalties and costs were lawfully and equitably due upon the premises, •either to Cook or into court, and he prayed for taking an account of legal taxes, penalties, interest and costs due and unpaid on the lot, and that ought, in equity, to be paid by him. This was a sufficient offer to pay the sum equitably due for taxes. But the court failed to have an account taken of the taxes, or to find the amount due appellee therefor, or to •decree its payment. This, also, was error.

The judgment of the Appellate Court is reversed. The decree of the circuit court is also reversed. The cause is remanded to the latter court, with directions to find the amount, of legal taxes, penalties and costs included in the tax judgment, and all subsequent taxes paid by appellee Cook on the-premises, and six per cent interest upon said amounts, and to-decree that appellant pay to said appellee, within a short day to be named, the aggregate of these amounts, and to further-decree that upon such payment being made the injunction herein be made perpetual, and further to enter a decree in conformity with the prayers of the amended and supplemental. • bills and the views herein expressed, and, finally, to decree that in default of payment by appellant of the aggregate amount-decreed to be paid to appellee Cook within the time fixed by the decree, the bill be dismissed at the costs of appellant.

Judgment reversed.