The holder of a tax title is a proper party to the condemnation proceeding, for the statute requires the petition to set forth the names of all persons interested in the property as owners or otherwise, as appearing of record. The object of the proceeding is to acquire the entire title free from any encumbrances or liens, and therefore every person claiming an interest in the land is a proper party. A tax deed either conveys the paramount title or it conveys nothing, and a petitioner seeking to condemn the land has a right to have that question determined, for upon it depends the important question of the ownership of the land. Timke's answer stated that his interest in the premises being derived from the holder of a tax title he believed the same was ineffectual to convey to him a valid fee simple title, but that he acquired, by reason of the conveyance, a valid and subsisting interest in the title of his grantor, which was a tax title. This admission is a confession that his title which appeared of record was invalid and invested him with no interest in the land, and that he was therefore entitled to no portion of the compensation to be awarded in the condemnation proceeding. City of Chicago v. Pick, 251 Ill. 594; O'Connell v. Sanford, 255 id. 49; Sanitary District v. Murphy, 261 id. 269.

There is no bill of exceptions in the record, and therefore the question of the sufficiency of the record to sustain the finding and judgment that Jacob Glos, Emma J. Glos and Timke have no interest in the land cannot be considered. The Eminent Domain act provides a proceeding for the taking of private property for public use, which is entirely statutory. It has nothing equitable in its nature but is a matter of strict legal right, and the proceeding is one at law and not in chancery. The practice in such proceedings is according to the practice which prevails in courts of law. Many cases under this act have been reviewed in this court and the rules of common law practice have always been applied.

It is argued, however, on behalf of the appellants, that the proceeding to condemn is at law only so far as it relates to the awarding of compensation but that the preliminary proceedings to determine the question of ownership are conducted according to the rules of chancery practice. This position finds no support in any decision of the court. It is true that we have held that in deciding questions of title among the various defendants the court will not be restricted to legal titles but will ascertain the rights of the respective owners in the property appropriated, whether such rights are legal or equitable. But this does not change the proceeding from one in law to one in chancery. The fact that a court in a statutory proceeding recognizes and enforces equitable rights does not change the proceeding from law to chancery. The action of the court in such proceeding is still presumed to be right until error is made to appear, and the burden of preserving the evidence of such error is upon the party complaining of it.

The record shows that the parties appeared and the court heard evidence "concerning the right of the petitioner to acquire in this proceeding the fee simple title to said real estate," and found, among other things, "that the said Jacob Glos, Emma J. Glos and August A. Timke, or either of them, have no interest whatsoever" in the lands. It is insisted that evidence concerning the right of the petitioner to acquire the fee simple title to the real estate would not enable the court to find that appellants had no interest in the property. In the absence of a bill of exceptions showing all the evidence that was actually heard it will be presumed that there was evidence to sustain every finding necessary to sustain the judgment of the court.

Judgment affirmed.

FRANK S. WRIGHT, Appellee, vs. Jacob Glos, Appellant. Opinion filed June 16, 1914-Rehearing denied October 7, 1914.

1. TAX DEEDS—statute requiring notice to occupant of premises must be strictly followed. Section 216 of the Revenue law, providing that before a tax deed is issued to the purchaser of land at a tax sale such purchaser shall serve, or cause to be served, a notice on every person in actual possession or occupancy of the land, if upon diligent inquiry they can be found in the county, at least three months before the expiration of the period of redemption, must be strictly complied with.

2. SAME when affidavit that owner of premises could not be found upon diligent inquiry is overcome. A statement in an affidavit by the purchaser of land at a tax sale that personal notice was not served because the person in the possession or occupancy of the premises could not, upon diligent inquiry, be found in the county, is overcome by testimony of the owner of the legal title that he resided on the premises in question for four years, which covered the entire period of redemption, during which time his name was in the city directory, showing that he resided on the premises, and that during the spring and summer of each year he was in the city all the time except Saturdays and Sundays.

3. SAME-what is meant by words "diligent inquiry," as used in section 216 of Revenue act. The words "diligent inquiry," used in section 216 of the Revenue act with reference to service of personal notice upon the occupant of premises sold for taxes, mean what an ordinary business man or other person would understand them to mean if he sent an employee to a certain house to find the occupant, and it cannot be said that an employee would discharge his duty in that regard if he went to the house on Saturdays and Sundays, only.

4. SAME what amounts to such tender as justifies charging subsequent costs to defendant. If, after notice that tender will be made in open court, the defendant fails to appear, upon which the court orders the money due the defendant and the unknown owners to be deposited with the clerk, which is done and notice given to the defendant of such deposit, there is a sufficient tender to justify charging the defendant with subsequent costs.

APPEAL from the Superior Court of Cook county; the Hon. JOHN M. O'CONNOR, Judge, presiding.

JOHN R. O'CONNOR, for appellant.

WILLIAM GIBSON, for appellee.

Mr. JUSTICE CARTER delivered the opinion of the court:

This is an appeal from a decree entered in the superior court of Cook county setting aside a tax deed on property which appellee, Frank S. Wright, alleged in his bill that he owned and occupied. Jacob Glos, one of the defendants, answered said bill, denying, generally, the allegations and demanding strict proof. August Timke, another defendant, was defaulted, but thereafter the default was vacated and Timke's answer filed. The cause was referred to a master in chancery, who heard the evidence and reported, recommending that the tax deed be set aside.

Counsel for appellant first contends that the decree of the superior court erroneously set aside the tax deed, as the proof does not show that such deed was invalid. This contention is based, in part, upon the alleged insufficiency of the clerk's certification as to what the records of his office showed concerning the tax sale and tax deed. That certificate, after setting out that the county clerk was the keeper of the records, certified that the foregoing "is a true copy of such parts of the application for tax deeds filed June 30, A. D. 1909, and August 3, A. D. 1909; also a true copy of the certificates of sale upon which tax deed No. 9541H was issued, all of which appears from the records and files in my office." Counsel argues that from this certificate it does not appear what parts of the application were copied or to what the word "such" relates. It appears from the record that the application for tax deeds and the certificates of sale cover numerous pieces of property, upon which any number of deeds were issued under the one application, but that the appellee herein is interested in only one tax deed. It must be admitted that the certificate is awkwardly worded, but, taken in connection with that part of the record to which it was appended when offered in evidence, it is manifest that its meaning is that

the foregoing is a true copy of such parts of the application for tax deeds as apply to tax deed No. 9541H, and also a true copy of the certificate of sale upon which that tax deed was issued. Appellant was not misled in any way by the wording of the certificate. Indeed, his counsel did not object to the introduction of this certificate or call attention to any defect in it on the trial. The record to which this certificate was attached clearly showed the invalidity of the tax deed, and the meaning of the certificate cannot, in our judgment, be misunderstood.

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Counsel further contends that the evidence does not establish the allegation of the bill and finding of the decree that there was no service of notice upon the persons in possession during the redemption period, as required by law. Section 216 of the Revenue act requires that before a tax deed is issued to the purchaser of land under a tax sale such purchaser 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 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 the redemption on such sale." (Hurd's Stat. 1913, p. 2062.) It appears from the affidavits in the record by Glos and Timke that personal notice was not served upon appellee, because those affidavits assert that "upon diligent search and inquiry" he could not be found in Cook county, Illinois. Appellee testified that he resided upon this property from 1906 to 1910, inclusive, occupying it as his home during all those years, the building thereon being a three-story and basement brown-stone residence; that his name during all those years was in the Chicago city directory, showing that he resided upon the property in question; that during the spring and summer of each of the years in question he was