Ames v. Sankey , 128 Ill. 523 ( 1889 )

Mr. Justice Magbudeb

delivered the opinion of the Court:

This is a bill to remove certain tax certificates as clouds upon the title to certain lots in Chicago. The tax sales were made in October, 1884. The bill was filed in July, 1886, several months before the expiration of the period of redemption. The only question in the case is, whether the bill will lie, and we think that this question must be answered in the affirmative. Hirst, the tax certificates of purchase issued by the County Clerk were void, because the clerk did not make and enter upon the record the certificate required by section 194 of the Revenue Act. (Starr & Cur. Stat. vol. 2, page 2093). That section provides, that, on the day advertised for sale, the county clerk, assisted by the collector, shall carefully examine the list, upon which judgment has been rendered, etc., and shall make a certificate to be entered on said record following the order of court, that such record is correct, and that judgment was rendered upon the property therein mentioned for the taxes, interest and costs due thereon. The section also provides, that the certificate, so to be made and entered by the clerk, shall be attested by him under seal of the court, and shall be the process on which all real property or any interest therein shall be sold for taxes, special assessments, interest and costs due thereon. Such certificate is required to be substantially in the form set out in the section.

Where the law expressly directs that process shall be in a specified form, and issued in a particular manner, such a provision is mandatory. (Sidwell v. Schumacher, 99 Ill. 426). This rule applies to that which stands in the place of process and performs its office. (Eagan v. Connelly, 107 Ill. 458). In this case, there was no attested certificate, and, therefore, no process, under which the officer making the sale was authorized to act. Hence the sale, and the certificates issued to the purchaser, were void. (Bell v. Johnson, 111 Ill. 374; Neff v. Smyth, 111 id. 100).

Second, the tax certificates, having been issued upon a void sale for taxes, will be removed by a court of equity as clouds upon the 'title. It is alleged in the bill and admitted by the demurrer, that all the lots in controversy, are vacant and unoccupied except two, and that complainants are in the possession of these two. The certificates, though worthless, tend to cloud the title, as they are calculated to depreciate the value of the lots by giving rise to the fear of litigation and annoyance. (Gage v. Rohrbach, 56 Ill. 262; Gage v. Chapman, 56 id. 311; Phelps v. Harding, 87 id. 442).

Third, the bill offers to “pay whatever moneys, taxes and interest equity and the court may require.” The amount, which the complainants should be required to pay, in order to entitle themselves to a decree removing the certificates as clouds, is the amount paid at the tax sale, together with the subsequent taxes paid, and interest at the rate of six per cent per annum from the dates of the respective judgments. This is the uniform rule, laid down by this court in a long line of decisions. (Gage v. Pirtle, 124 Ill. 502.)

The judgment of the Appellate Court is affirmed.

Judgment affirmed.