Cook County IL Archives Court.....Glos, Vs Evanston Building Loan Assn 1900
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Source: Reports Of Cases At Law And In Chancery
Written: 1900

Jacob Glos 

v.

The Evanston, etc. Building and Loan Association.

Opinion filed October 19, 1900.

1. Tax deeds—purchaser need not notify mortgagee of expiration of redemption. 
The purchaser at a tax sale is not, under section 216 of the Revenue act, as 
amended in 1879, (Laws of 1879, p. 256,) bound to serve notice of the 
expiration of the time of redemption upon a mortgagee who is not in possession 
of the premises, and his failure to serve such notice in no way affects his 
right to take out a deed under the sale. (Smyth v. Neff, 123 Ill. 310, 
followed.)

2. Injunction—mortgagee cannot enjoin issue of tax deed for failure to receive 
notice. A mortgagee cannot, after the time for redemption from a tax sale has 
expired, enjoin the issuing of a tax deed to the purchaser upon the ground 
that he received no notice of the expiration of the time for redemption; nor 
is his right in that regard aided by the fact that he relied upon the 
mortgagor's statement that the premises were sold by mistake and that he would 
have the sale canceled.

Glos v. Evanston, etc. B. and L. Ass. 86 Ill. App. 661, reversed.

Appeal from the Branch Appellate Court for the First District;—heard in that 
court on appeal from the Circuit Court of Cook county; the Hon. Abner Smith, 
Judge, presiding.

The appellee filed its bill in the circuit court of Cook county on December 
24, 1897, against Jacob Glos and Philip Knopf, county clerk of Cook county, 
for an injunction restraining Knopf, as county clerk, from issuing, and Glos 
from obtaining, a deed to lot 11, block 8, , North Evanston, Cook county, 
Illinois. An injunction was issued against Knopf only. A motion to dissolve 
and a general demurrer filed by Glos were heard together. The court denied the 
motion, overruled the demurrer and entered a decree making the injunction 
perpetual. From a reversal of this decree by the Branch Appellate Court, 
directing appellee to deposit the sum of $26.91 in the lower court for the use 
of Glos and then for a decree in favor of the complainant, Glos appeals to 
this court.

The bill alleges the complainant, a building and loan association, is 
interested in said premises by virtue of two mortgages executed to it by Emil 
Coel, the owner thereof,—one mortgage bearing date March 26, 1889, for the sum 
of $1000, which was recorded in the recorder's office of Cook county on the 
third day of April, 1889, and on which there remains due $573.15; and one 
mortgage bearing date June 20, 1891, for the sum of $500, which was recorded 
in the recorder's office of Cook county on the first day of September, 1891, 
and on which there remains due $451.88. The bill further alleges that Emil 
Coel and wife, the mortgagors, are insolvent and unable to pay said 
indebtedness, and that complainant relies exclusively upon said real estate as 
security for the payment of said indebtedness. The bill further alleges that 
on the sixth day of November, 1895, said premises were sold for the non-
payment of one of the installments of a special assessment levied against said 
lot, and that Glos purchased said premises at said sale for the sum of $1.35 
and received a certificate therefor; that on the eleventh day of August, 1897, 
Glos paid the further sum of $22.04 for the general taxes on said premises for 
the year 1896; that more than ninety days prior to the sixth day of November, 
1897, Glos served a notice upon Coel, the owner, who was then in the occupancy 
of said lot, that he had purchased said lot, and that the time of redemption 
would expire on the sixth day of November, 1897; that no such notice was given 
by Glos or any other person to the complainant, although the mortgages given 
it by Coel had been recorded and were then standing uncanceled of record in 
the recorder's office of Cook county, and the debts secured thereby were then, 
and still are, owing and unpaid. The bill further alleges that in the spring 
of 1897 the complainant was informed that said premises had been sold for the 
non-payment of said special assessment, and so notified Coel, who claimed the 
same had been sold in error and that he would have such sale canceled; that 
complainant believed he had done so until after November 6, 1897; that Coel 
offered to pay to Glos whatever sum was owing for said special assessment and 
subsequent taxes paid by Glos, with penalties and interest, and that the 
secretary of the complainant offered him the sum of $50 in payment of the 
amounts of money which had been theretofore paid by him for such special 
assessment, taxes, penalties and interest, but that he declined to accept the 
same. The complainant in its bill offers to pay Glos, or his co-defendant, 
Knopf, said special assessment, with penalties, interest an d costs thereon, 
as well as taxes paid on said lot by Glos since the purchase thereof by him. 
The bill further alleges that the complainant is informed and believes that 
unless restrained Glos will make a defective affidavit and file the same with 
Knopf, and that Knopf, as county clerk, will, on or after January 1, 1898, 
execute a deed of conveyance of said premises to Glos, who will immediately 
file the same for record in the office of the recorder of deeds of Cook 
county; that such tax deed, if valid, will take away and destroy the interest 
of complainant in said premises and destroy the security of complainant, and 
leave complainant without any means of obtaining satisfaction of the same; 
that the property upon foreclosure sale will not bring a sum in excess of 
$1000.

Enoch J. Price, for appellant.

H. H. C. Miller, and W. S. Oppenheim, for appellee.

Mr. Justice Hand delivered the opinion of the court: 

The first contention of appellant is, that appellee, not being in the 
possession of the premises and the same being occupied and improved, has no 
standing in a court of equity to file a bill to remove a cloud, or to restrain 
appellant from obtaining a title which might become a cloud, upon its title to 
the premises in controversy. If the object of this bill is to remove a cloud 
from the title of appellee, or to restrain appellant from obtaining a title 
which might become a cloud thereon, the contention of appellant is correct. 
(Hardin v. Jones, 86 Ill. 313; Gage v. Abbott, 99 id. 366; Wetherell v. merle, 
123 id. 666; Johnson v. Huling, 127 id. 14; Glos v. Randolph, 133 id. 197; 
Hewes v. Glos, 170 id. 436; Glos v. Goodrich, 175 id. 20.) On the other hand, 
if the bill is based upon the ground of irreparable injury to appellee by 
reason of the danger of the loss or the destruction of its security, and the 
object of the bill is to redeem from the sale, and any ground is shown why the 
title sought to be obtained by appellant is invalid, under the authority of 
Miller v. Cook, 135 Ill. 190, and Burton v. Perry, 146 id. 71, the appellee 
can maintain its bill, although its only interest is that of mortgagee and the 
land is improved and in the possession of another.

It is further contended by appellant that he was not bound to notify appellee, 
who was but a mortgagee, of the expiration of the time of redemption, and that 
the failure to give appellee such notice is no valid reason why appellant 
should not receive a deed from Knopf, as county clerk, for the premises in 
question. Section 5 of article 9 of the constitution of 1870 provides: "The 
General Assembly shall provide by law for reasonable 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." To carry into 
effect such constitutional provision the General Assembly has provided by law 
for what shall be deemed reasonable notice to owners of real estate sold for 
taxes or special assessments. Section 216 of the act of 1872, 
entitled "Revenue," (Rev. Stat. 1874, as amended by the act of 1879; Laws of 
1879, p. 256;) provides: "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 
otherwise [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 Avhose 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 before 
the expiration of the time of redemption on such sale."

The question whether, within the meaning of this statute, a mortgagee is an 
interested party and entitled to be notified by the purchaser of the 
expiration of the time of redemption, is not an open question in this court. 
In the case of Smyth v. Neff, 123 Ill. 310, we held that a mortgagee, by 
virtue of this statute, is not entitled to such notice; that the statute must 
be regarded as meaning the same as though the words "or parties interested" 
were omitted; that the legislature having failed to designate the "person 
interested" in lands sold for taxes and special assessments, other than the 
owners or persons in possession or in whose name the land is taxed or 
assessed, the purchaser is not required to serve any notice of his purchase 
upon the person holding a mortgage or other lien upon the land in order to 
entitle himself to a tax deed. We say on page 320: "It is therefore apparent, 
when the purchaser at tax sale has given the proper notice to the owner he has 
complied with the statutory requirements in that respect, for no 
other 'parties interested' are designated by law, either as a class or as 
individuals, upon whom he could serve notice. Had mortgagees or judgment 
creditors, or other persons having a lien on such property of record, been 
designated by name or as a class, such persons could have been readily 
ascertained by an examination of the public records. But as the statute now 
is, the purchaser cannot know, from any direction given, to whom he is 
expected to give such notice as the statute requires, other than to the owner. 
In that respect the statute must be regarded as meaning precisely the same as 
it would mean if the words 'or parties interested' had been omitted. In this 
case the owner was served with the statutory notice within apt time, and that 
is deemed a sufficient compliance with the law in this respect."

It is claimed by appellee that the sale in the case of Smyth v. Neff, supra, 
was had under the old statute, which did not provide for notice to the owners 
or parties interested in the land or lot, and that section 216 of the Revenue 
law, as amended in 1879, did not apply to such sale and was not properly 
before the court for construction at the time that case was decided. While it 
is true such amendment did not go into effect until after the date of the 
sale, it was in full force and effect and applied to such sale at the time 
when notice of the expiration of the time of redemption should have been given 
and a deed made. We held in Gage v. Stewart, 127 Ill. 207, and in Smith v. 
Prall, 133 id. 308, that the act of 1879 was intended to take effect in 
presenti as to all notices served or to be served thereafter, and to apply to 
all purchasers at tax sales and their assigns, irrespective of when the sale 
for taxes was made.

It is further claimed by appellee that the case of Smyth v. Neff, supra, has 
been modified and partially overruled by Gonzalia v. Bartelsman, 143 Ill. 634. 
We do not so understand the case, the point of which is, that notice must be 
served upon the parties who own the land at the time notice is served, and not 
those who owned the land at the time of sale. The object of giving the notice, 
it is said, is to enable those in whose favor the right of redemption is, to 
exercise that right; but neither the constitution nor the statute contemplates 
the service of notice upon persons who have ceased to be interested in the 
land.

Appellee insists that the decree in this case should be sustained on the 
ground that equity will permit redemption to be made from a judicial or tax 
sale where the person entitled to redeem has failed to do so by surprise or 
excusable neglect or has been misled as to the facts. There is no pretense in 
this case that the appellant, by any act of his, surprised or misled the 
appellee. If the appellee saw fit to rely upon the statement of Coel that the 
premises had been sold in error and that he would see that they were redeemed 
or released, that was a matter between Coel and appellee, and in no way 
affected the rights of appellant.

We are of the opinion appellant was not bound to serve notice of the 
expiration of the time of redemption from the sale in question upon appellee, 
whose only interest in the premises was that of mortgagee, and that the 
failure to serve such notice in no way affected the right of appellant to take 
out a deed under such sale; that appellee, having suffered to elapse the two 
years provided by law in which it had the right to redeem from such sale, and 
the want of notice being the only ground relied upon in the bill for equitable 
relief, the demurrer should have been sustained and the bill dismissed.

For the reasons above stated, the judgment of the Appellate Court and the 
decree of the circuit court are reversed and the cause remanded to the circuit 
court, with directions to dismiss the bill.

Reversed and remanded, with directions.

Additional Comments:
Reports of Cases at Law and in Chancery Argued and Determined in the Supreme 
Court of Illinois, Volume 186, Containing Cases in which Opinions were filed 
in June and October, 1900, and Cases in which Rehearings were denied at the 
October term, 1900. Isaac Newton Phillips, Reporter. Springfield: 1900.

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