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Briefs of Counsel. Opinion of the Court.

APPEAL from the Appellate Court for the First District;heard in that court on appeal from the Superior Court of Cook county; the Hon. GEORGE GARDNER, Judge, presiding.

Mr. S. M. MILLARD, for the appellants, to show that a freehold is not involved in a suit for partition, cited Chicago, Burlington and Quincy R. R. Co, v. Watson, 105 IIl. 217.

Neither in the original nor cross-bill is a freehold involved. Hutchinson v. Howe, 100 Ill. 11; Richards v. People, id. 424; Galbraith v. Plasters, 101 id. 444; Chicago Theological Seminary v. Gage, 103 id. 176; Conkey v. Knight, 104 id. 337.

Messrs. HUTCHINSON & PARTRIDGE, for the appellees :

In all partition suits a freehold is involved. Carter et al. v. Penn, 99 Ill. 390. See, also, Theological Seminary v. Gage, 103 id. 180.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This appeal brings before us for review an order of the Appellate Court for the First District, dismissing an appeal from a decree of the Superior Court of Cook county, in a partition proceeding, on the ground the Appellate Court had no jurisdiction in such case. The action of the Appellate Court is based upon the legal hypothesis a freehold is necessarily involved in a proceeding for partition, and it was therefore held the appeal should have been taken directly to this court. The ruling of the court in this respect presents the main question for determination.

The question is not a new one in this court. The case of Carter et al. v. Penn, 99 Ill. 390, expressly holds that a freehold is involved in a partition proceeding, and the rule laid down in that case must govern this. Counsel for appellants, however, claims that under the rule, as laid down in Chicago, Burlington and Quincy R. R. Co. v. Watson, 105 Ill. 217, which is a later case, a freehold is not involved in this case. It was there said: "A freehold is never involved, within the

7--110 ILL.

Opinion of the Court.

meaning of the statute, except when the primary object of the suit is the recovery of a freehold estate, the title whereof is directly put in issue, and where the suit, if prosecuted to a final determination, will, by virtue of the judgment or decree rendered therein, as between the parties, result in one gaining and the other losing the estate."

We perceive nothing in the language here cited that at all conflicts with what is said in the Carter-Penn case, and there was certainly no intention of modifying the rule as announced in the latter case, nor does the language used in the Watson case have that effect. Under the rule, as stated in the Watson case, we think it clear every partition suit necessarily involves a freehold. In addition to the fact that the parties are bound to set forth and prove their titles and respective interests, each co-tenant, upon a partition being effected, loses his title and interest in every part of the land divided except the parcel assigned to himself, and as to that he becomes the sole and exclusive owner. Of course in this process, by which one of the co-tenants acquires an exclusive interest in a specific part of the partitioned premises, the others must necessarily lose what he gains. If, on the other hand, the land itself can not be partitioned, and a sale is ordered, in that event all the co-tenants will necessarily lose their estate or title in the subject of partition, but will receive, as an equivalent for it, its value in money. Thus it will be seen, every partition suit, whatever may be the state of the title, provided the subject of partition is a freehold estate, will necessarily involve a freehold.

It is also claimed the Appellate Court erred in entering a decree against appellants for costs on dismissal of the appeal. While the Appellate Court had no jurisdiction to entertain the appeal, yet it clearly had power and jurisdiction to enter an order dismissing it, and we are of opinion, as an incident of such power, it was authorized to award costs, as it did. The judgment will be affirmed.

Judgment affirmed.

Syllabus. Opinion of the Court.

JOSEPH PEACOCK

v.

John CARNES et al.

Filed at Ottawa May 19, 1884.

1. SETTING ASIDE TAX SALEupon terms. On bill in chancery to set aside a tax sale of land, the complainant must do equity; and if the purchaser at a tax sale, by his purchase, has discharged the lien of taxes upon the complainant's land, the court will require the money paid to discharge such lien, to be refunded, with interest, as a condition to granting the relief sought.

2. SAME-as to evidence of amount of taxes due. A judgment of the county court, in 1878, against certain lots for taxes due thereon, in which judgment are included city taxes on the premises for the years 1873 and 1874, is sufficient evidence, on a bill to set aside a sale of the lots made under a subsequent judgment, that such taxes were due, and of their amount.

3. PRESERVING THE EVIDENCE-in chancery-certificate of evidencefindings in the decree. A decree setting aside a tax sale of lots for taxes, and requiring the complainant to refund the taxes paid by the purchaser, found the amount of city taxes for the years 1873 and 1874. The certificate of evidence stated that it contained all the evidence heard, but did not embrace these taxes. It also showed that certified copies of the judgment and sale for the city taxes of those years, etc., were given in evidence, and yet neither of these copies was preserved in the certificate: Heli, that as the certificate, taken as a whole, showed it did not contain all the evidence, this court could not say the findings in the decree were not sustained by the proofs.

APPEAL from the Appellate Court for the First District;heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.

Mr. CONSIDER H. WILLETT, and Mr. GEORGE L. THATCHER, for the appellant.

Messrs. J. P. & T. R. Wilson, for the appellees.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

In this case Joseph Peacock filed his bill for a perpetual injunction against the county clerk of Cook county, to restrain

Opinion of the Court.

him from issuing a tax deed upon tax certificates of sale held by John Carnes. The bill alleges that the tax certificates describe the property sold as lots 10, 11 and 12, block 107, school section addition to Chicago, and that the county clerk threatened and insisted that upon such certificates he would issue a tax deed, conveying property owned by complainant, of the following description: lots 10, 11 and 12, in Stowell's subdivision of blocks 106 and 107, school section addition to Chicago. The court decreed the relief sought, upon the condition of the payment of $4839.36, (the amount, with interest, of the bid at the tax sale,) which amount had been applied to the payment of the taxes and penalties due and delinquent upon the last described lots, owned by complainant. On appeal to the Appellate Court for the First District the decree was affirmed, and complainant appeals to this court.

It is insisted that the condition in the decree is erroneous. It has been frequently held by this court, in applications of this character in a court of equity to have set aside tax sales, that the complainant must do equity, and if the purchaser at tax sale, by his purchase, has discharged the lien of taxes upon the complainant's land, that the money paid to discharge such lien should be refunded, with interest, as a condition of his having relief in a court of equity. (Moore v. Wayman, 107 Ill. 192; Reed v. Tyler, 56 id. 288; Farwell v. Harding, 96 id. 32; Barnett v. Cline, 60 id. 205.) The decree found all the facts, which, according to the foregoing and other decisions, made it a proper condition of the relief granted that complainant should refund to defendant Carnes the taxes upon the former's land, which had been discharged by the tax sale to Carnes.

It is claimed, further, that the decree is not sustained as to the amount of taxes which it requires to be paid as the condition of relief. The tax sale was made on October 11, 1880, under a judgment on a return of lands delinquent under a warrant issued for the collection of the taxes for the

Opinion of the Court.

year 1879, and prior years, to and inclusive of the year 1873. It is in respect of the city taxes of Chicago for the years 1873 and 1874, that this claim is made. Although the decree finds the amount of the city taxes for those years, yet there is a certificate of evidence in the case which states expressly that it contains all the evidence offered or given on the hearing, and the city taxes for those years are not embraced in the certificate, therefore it is said the certificate of evidence must control, and it does not warrant the finding of fact by the decree of the amount of these taxes for those years, so that as respects those taxes the decree is not supported by the proofs.

It appears from the certificate of evidence that defendants offered in evidence a certified copy of the judgment, and sale under the warrant, for the city taxes of 1873 and 1874, and also the warrant issued for the taxes of 1879, and previous years, and also a copy of the judgment and order of sale on which the sale in question took place, all of which documents were objected to by complainant, objections overruled, and exceptions taken, from which we understand these documents were in evidence, yet neither of them is preserved in the certificate of evidence. Hence, although the certificate does purport to contain all the evidence, it appears upon its whole showing that it does not,—that from some cause these documents were not preserved, and without them we can not say that the findings in the decree were not sustained by the proofs. Further, there was in evidence the judgment for the year 1878, in which complainant's lots were properly described, and in that judgment were included these taxes for 1873 and 1874, and under it the lots were forfeited for said taxes, and the amount of such forfeiture, including said taxes, was brought forward and included in the sale set aside by the decree. That judgment of the county court would be sufficient evidence that said taxes were due, and of their amount. The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

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