APPEAL from the Circuit Court of McHenry County; the Hon.
WILLIAM M. CARROLL, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 24, 1971.
This is an action in ejectment brought to acquire possession of certain parcels of real estate located on a former railroad right of way in McHenry County, Illinois, which parcels were adjacent to the farms of the defendants. It is alleged that defendants are unlawfully in possession of the realty and that fee simple title to it adheres in plaintiff. Defendants filed a counterclaim to quiet title in themselves.
Plaintiff is an Illinois, not-for-profit, corporation engaged in the operation of a railway museum. The three strips of land involved in this action were formerly part of the roadbed of the Elgin & Belvidere Electric Company, a defunct interurban electric railway. Each parcel is fifty feet in width, with varying lengths, bounded on the north by a railroad right of way owned by the Chicago and Northwestern Railway Company and bounded on the south by farms owned by the defendants.
Plaintiff's complaint alleged that it purchased the disputed parcels at tax sales held in McHenry County in 1957 and 1958. No tax deed is claimed to have been issued. Plaintiff further alleged that it purchased a quit claim deed from the prior owners-in-fee of the disputed parcels in 1961 and that it had paid all current and back real estate taxes due on the parcels at the time of purchase and continued to do so to the present time. Plaintiff further alleged that it entered upon the parcels and took possession in 1957 and remained in possession until April 10, 1968, when defendants were alleged to have taken and withheld possession unlawfully from plaintiff. Attached to the complaint was a certification by the McHenry County Clerk that the plaintiff had purchased the parcels in dispute at tax sales held on October 21, 1957 and October 20, 1958, and a copy of a quit claim deed to the parcels in dispute from Robert M. Arnold, Audry Arnold, his wife, and Stanley B. Arnold, to the plaintiff museum executed in 1961.
Defendants in their answer admitted that the plaintiff purchased the land in dispute at a tax sale, but denied that any interest in the land was thereby acquired as a result of such proceedings. Defendants also admitted the quit claim deed, but denied that plaintiff acquired any title by it. Defendants set up the affirmative defense of twenty years adverse possession. Also, defendants' counterclaim alleged adverse possession for twenty years and prayed that the quit claim deed be declared void, ordered cancelled and that title to the parcels of real estate be quieted in the defendants. They alleged that they had fenced, pastured, and cropped the disputed parcels from the time of their acquisition (1941, 1942, and 1946 respectively) until the present.
Plaintiff filed a motion to dismiss the counterclaim and for summary judgment on its complaint, arguing three separate grounds: (1) Defendants are estopped from claiming title by adverse possession by the holding of the tax sale and by their failure to assert title at that time; (2) Quit claim deed passed good title to the plaintiff; and (3) Section 7 of the Limitations Act (Ill. Rev. Stat. 1967, ch. 83, par. 7) requires a finding of legal title in plaintiff. The motion was denied by the trial court. Plaintiff here asserts the same three grounds for reversal.
It is first argued that defendants' counterclaim should have been dismissed because they were estopped from claiming title by adverse possession after the tax sales to these parcels were held. Plaintiff relies on the cases of Moore v. Gilmer (1933), 353 Ill. 420 and Shippert v. Shippert (1939), 371 Ill. 267, wherein the court held that when a person having title to or an interest in property knowingly stands by and suffers it to be sold under a judgment order or decree without asserting his title or right or making it known to the bidder, he cannot afterwards set up his claim. Plaintiff argues that all defendants had notice or were chargeable with notice, (Chi. Title and Trust Co. v. Drobnick (1960), 20 Ill.2d 374), and their failure to appear at the tax sale is fatal to their counterclaim.
• 1 We disagree. The cases relied upon by plaintiff in support of its estoppel theory are distinguishable on their facts. The appellants in Moore sought review of a probate court proceedings wherein certain real estate was sold to pay decedent's debts. Published notice of the sale was defective but, shortly after the decree for sale was entered, appellants entered their appearance and filed a waiver of all errors, inaccuracies, and insufficiencies in the publication notice, and requested that a decree be entered for the sale. After the sale had been held, appellants caused certain deeds, which predated the death of the decedent, to be recorded. The deed purported to be a grant to the disputed land by decedent to appellants. The court used the equitable remedy of estoppel to prevent appellants from invalidating the sale. No useful analogy can be drawn from this case, as there is no evidence here that defendants had actual knowledge of the sale or induced the court to allow the sale, as in the cited case.
Plaintiff also relies on Shippert in support of its estoppel theory. Shippert concerns itself with partition, which by statute was made a purely equitable remedy, where every person with an interest in the property is made a party defendant. All parties to the record are adversary parties in the sense that each one is bound to make known his rights and to have his interests determined by the decree, and all are bound by the decree. Equitable estoppel against a party with such duties has no application to the present cause.
Plaintiff relies most heavily on Drobnick for the argument that defendants in this case are charged with actual notice of the tax sale and are bound by its result. But the factual situation in Drobnick is clearly distinguishable. The defendant was purchaser of a parcel of land at a tax sale; he later obtained a tax deed and paid all subsequent taxes on the property. Twenty five years later, the original owner sought redemption of the property on the grounds that purchaser had failed to take timely possession of the property as required under the Revenue Act to perfect title. The court held that the purchaser by his acts had fully established his title under Section 7 of the Limitations Act, so as to bar plaintiff's claim to paramount title. The decision is based solely on the provisions of the Limitations Act and involves no theory of equitable estoppel.
• 2-4 In addition to the estoppel argument, plaintiff cites the case of Daveis v. Collins (1890), 43 Fed. 31 for the proposition that a tax sale stops the running of the 20 year limitation period, and the adverse possessor must possess for 20 years from the passing of the tax title. In Daveis, however, the statutory proceedings for acquisition of land pursuant to a tax sale were completed, tax deeds were issued and tax title accrued, as well as the accomplishment of other pertinent factors. In the present case, there was no allegation that the procedures had been completed. A certificate of sale does not pass title to the purchaser until the passing of the redemption period and the issuance of a tax deed. (Bush v. Caldwell (1906), 224 Ill. 93, 94; Hammalle v. Lebensberger (1912), 256 Ill. 547; Hockett v. Logan (1913), 257 Ill. 326, 327; Wells v. Glos (1917), 277 Ill. 516, 518-520.) Failure to obtain the tax deed is not fatal if the purchaser establishes a valid judgment against the land, a valid precept authorizing the proper person to make the sale, and a proper conveyance of the land from said person. (Atkins v. Hinman (1845), 7 Ill. 437, 448-449.) A tax deed constitutes prima facie evidence of the following, and without it the purchaser must clearly establish all of these facts to show valid title: (a) that the real estate conveyed was subject to taxation at the time the same was assessed, and had been listed and assessed in the time and manner required by law; (b) that the taxes were not paid at any time before the sale; (c) that the real estate conveyed had not been redeemed from the sale at the date of the deed; (d) that the real estate was advertised for sale in the manner and for the length of time required by law; (e) that the real estate was sold for taxes; (f) that the party claiming title was the purchaser or assignee of the purchaser; (g) that the sale was conducted in the manner required by law. (Ill. Rev. Stat. 1967, ch. 120, par. 752; U.S. v. Meyer (1961), 199 F. Supp. 508, 513, 518.) No deed having been alleged by plaintiff, and defendant having admitted only "(e)" above, the trial court could not rule as a matter of law that valid title passed by the tax sale and that the running of the statutory 20 year period had been thereby stopped.
• 5, 6 The report of the decision in the Daveis case is a recital of the court's instructions to the jury for a directed verdict, so we may not speculate as to theories relied upon. But it may be said that the rule sought to be applied in this case by plaintiff (that the running of the limitations period is stopped by the tax sale), is generally applied only in states where the fee title to the parcel is forfeited to the state under the applicable state revenue law. The statute of limitations does not run against a governmental body unless expressly provided in the limitations statute. In Illinois, however, the nature of the State's interest in the parcel is a lien on the property. (Ill. Rev. Stat. 1967, ch. 120, par. 697). The tax sale procedure is a foreclosure of that lien. Therefore, in Illinois, there is no violation of the rule that the limitation period does not run against the government.
• 7, 8 No cases have been cited to us nor has our research divulged any Illinois case that holds that a tax sale, in and by itself, stops the running of the limitation period. We hold that a tax sale, in and by itself, will not stop the ...