hi" deed, whiie the marshal's certificate of sale was on record. This of itself was notice to him. Atwood"t'. Bearr8, 45 Mich. 469. Nor do we think that the decree ought to oe opened to let in Markham's defence. The case was put at issue by filine a replication August 28, 1880. The demurrer was never set down fot hearing. On October 1st counsel on both sides signed a stipulation to proceed to take testimony. A commissioner was then agreed upon. Complainants' proofs were closed in November,and the time for taking of defend. ant's testimony was extended from time to time until the seventh of April, when an order for the closing of proofs was entered. Late in April defendant made an effort to take the testimony of one witness, but abandoned it, and consented to go to a hearing upon his demurrer, relying upon that as a defence. Rule W requires thatl'testimony in equity cases shall· betaken within three months after the case is a.t issue," and we are clearly of the opinion that defendant has hot made a case for the opening of proofs now. No request for further time was made, no request for pOstponement, and counsel deliberately consented to submit the case upon the demurrer. . But an equally conclusive answer is found in the fact that the affidavits do not disclose any defence which wduld be available to Markham. They tend to show that he made a bargain for the land in 1877 at $700, but the answer alleges that there was no money paid until December 26, (the day the deed was delivered,) when the marshal's certifillate of levy was on file, and Markham had actual notice that the property was sold upon execution. The motion for the rehearing must therefore be denied.
(Circuit Oourt, N. D. IUin()is.
April 24, 1882.)
TAX TITLE-VALIDITy-BuRNT RECORDS ACT-PROCEEDINGS.
The circuit court has jurisdiction to consider and pass upon the valfdity (If· a claim of title under a tax deed accrued subsequent to the destruction of the records, in an action by bill to restore title under the burnt records act. The practice in such cases stated.
ACTUAL POSSESSION-NoTICE OF TIME TO REDEEM.
Whel'e a party was in actual possession of the premises, it is the duty of the person seeking to obtain title through a tax sale to serve personal notice on the occupant of the premises of the expiration of the time to redeem from the tax sale to render the tax deed valid.
.. SAME-DUTY TO PAY TAXES AND ASSESSMENTS.
A party in the possession of land, to whose benefit has enured the payment 8f subsequent taxes and assessments upon such land by a party who holds a tax deed should not have the tax title set aside except upon such terms as will reimburse the holder of the tax title for money he has paid for the purpose of protecting the property.
("'LOUD ON TITLE-REMEDIES.
Where complainant seeka in a coun of equity relief from a tax deed which
Is a cloud on the title to her land, she should pay the amount required to
deem the land, with interest from the time of redemption, as a condition precedent to her right to relief. At law her remedy is by action·of
Monroe tt Leddy, for complainant. A. N. Gage, for defendant. BLODGETT, D.J. This bill was originally filed by the complainant in the state court, under what is termed the "Burnt Records. Act," for the purpose of restoring the complainant's title; the allegations being in substance that the complainant had a title in fee to the lot mentioned in the bill, deducible by a chain of conveyances from the United States to herself, all of which were of record in the recorder's office of Cook county, Illinois, and that by the destruction of,the rec. ords of the county in the great fire of October, 1871, all these te· corded evidences of title had been destroyed, and that she had lost her original deed, and therefore had no paper evidence of title on whieh to base her claim to the property. She made various persons parties to the suit, among whom was Asahel H. Gage, who, she charged, claimed some. title to the property. The case came to this court, and Gage answered here, setting out in substance that he holds a tax title to the property, which was obtained under a tax sale for the first instalment of the South park assessment, the sale having been made on the eleventh of October, 1873, for the assessment of and the tax deed having been made to him March 3, 1876. There has been no resistance to the complainant's case, except as to whether this tax title can be attacked in this form of proceeding, and as to the validity of this tax deed; complainant having, by an amended bill, charged that the assessment was illegally made, the sale illegally conducted, and the deed void for want of proper notice of the time when the redemption would expire. As to the jurisdiction of the court to consider and pass upon the validity of this tax title in this form of proceeding, this defendant's claim of title under his tax deed having accrued subsequent to the destruction of the records, I at first had Borne doubts, but a more careful examination of the statute authorizing this form of action has
led me to the conclusion that complainant may; in this action, attack defendant's subsequently-acquired title, and my reasons for this conclusion are briefly these: The act (section 16, c. 116, Rev. St. IlL) that the petition or bill for restoration of title shall set outFirst. ThEl extent of the estate in the land in question claimed by the complainant or petitioner, and from whom, when, and in what mode he derived his title thereto. He shall give the names .of all person3 owning or claiming any estate.in .fee in said lands, or any part ,thereof, and all persons to whom any such lands have been' conveyed, and the deed or deeds of such conveyances as shall have been recorded in the office of the recorder of deeds since the time of the destruction of such records, and prior to, the filing of such petition, and their residence, so far as the sltme are known. Second. ,All persons so named in the petitiollshall be made defendants, and shall be notified of said suit by summons,or by publication of notice in the ", same manner as may be required in chancery proceedings in this state. ; Third. Bisection 1$ allY person intereSted may oppose'llUch petition, may demur to at answer the bill, or file across-bill, if he'desires to do so. Fourth. By section 20 it is declared that it shall be competent for the court, by its decree in such cases, to determine in whom the title in any or all of the desClib!3d, in the petitiori is Vested, whether in the petitioner or any other of the parties before the court. '
I, ' ,
Here, it will be seen, is ample provision for bringing all claimants to a.ny title or interests in the lands before the court, and it is made the duty of the court to determine in which of the persons 80 before it the title is vested. It seems to me to have been the purpose of the legislature to make this proceeding a 80rt of drag-net into which all conflicting claimants of title or in the land might be drawn, and where the court, with all the parties before it, should determine their respective rights. It is not limited to titles or claSms which accrued before the destruction of the records, but in express terms provides that "all persons to whom such lands shall have been conveyed, and the deed o.r deeds of such shall have been recorded in the office of the recorder of deeds of such county, since the destruction pf the records," shall be made parties to, the pmceedings, evidently intending that the petitioner bring in all persons who appear of record to have any deed or convE;'lyance of any interest in the land, so that their respective titles or claims may be considered and passed upon. It is further provided that unknown owners Or claimants may be brought in under the designation of "all whom it may concern j" and the decree rendered in Buch proceeding is to be final and concluunless appealed within a certain time limited by the act, except as to persons in actual possession of the premises, or persons to whom
the lands have been oonveyed, and whose deeds have been reoorded sinoe the destruotion of the records, and prior to the time of filing the petition, who are not made defendants by name. ' f" It is possible that the oourt, on the final hearing of suoh a case, may in its discretion as a oourt of equity, where two oonflioting titles are represented, the validity of whioh can be determined in aoou:rt of law, by the express terms of this decree remit the parties holding of law for a trial oltheir rights; but this would suoh titles to a be purely a matter of equitable discretion, and does not limit the power of the oourt in this prooeeding to settle the entire title by its deoree. As to the validity of this tax deed, no proof is offered showing that the assessment was not regularly and legally made, and the judgment properly rendered against the land for default of payment, nor that the sale was not legally oonducted; but the only point insisted upon at the hearing was that the deed was void for want of proper notioe to the ocoupant of the land of the time when the redemption would expire. It is conceded that the holder of a oertificate of purohase of its tax sale, assuming that there was no person in possession or pation of this land, and that the person in whose name it was assessed oould not be found in the country, oaused a notice of the time of the purohase at suoh tax sale, and when the redemption would expire, to be published in a newspaper not more than five months nor less than three months before the time of redemption would expire, and on filing proof of the publioation of suoh notioe, an affidavit to the effeot that the land was unoooupied, and the person in whose name the land was assessed oould not be found in the county, with the oounty clerk, the tax deed in question was issued; but oomplainant oontends that this land was in faot at the time of this tax sale, and until after the execution and delivery of this tax deed, in the aotual possession or a Mrs. MoCarthy, and the conflicting proof in the oase is all centered around the nature and extent of her ocoupation of the premises. I think the result of the proof is to show that some years prior to this assessment and tax sale the husband of Mrs. McCarthy had built a house on the lot adjoining the lot now in question, and enolosed a portion of the lot in question as a garden and yard,-his enclosure taking in about 30 feet in the front of the lot, and extending back in a diagonal line so as to take in six or ten feet of the rear,-and some of the out-buildings or appurtenanoes of the McCarthy premises were erected on this lot.
MoCarthy, it seems, had died before this tax sale, and his widow ,and family had remained in possession. The fenoe bad become somewhat out of repair, and proof was put in on the part of defend.ant tending to show that it had ceased to be an enclosure; but I think the clear preponderance of the proof is that a portion of this lot was, at the time this notice was published, in the actual possession and occupancy of Mrs. McCarthy, and within her enclosure; that the fence was sufficiently in repair to indicate and maintain such possession; that an intruder into the portion of the lot within this enclosure would have been a trespasser upon Mrs. McCarthy's possession. True, the proof does not show that Mrs. McCarthy was the tenant of this complainant, or of any person through whom the complainant claims title, but I think we must assume she was there with the l\nowledge and perhaps by the permission of the owner of theiee. She was certainly :'an occupant" within the meaning of the oonstitution and statutes of this state. Section 5, art. 9, Const. 1870, and section 216, c. 120, Bev. St. Ill. It was the duty of the person seeking to obtain a tax title, under a sale for tax or assessment, to serve personal notice on such occupant as a condition precedent to the issue of a valid tax deed; but this complainant has come into a court of equity seeking not only to have her own title established, but also to have this tax title Bet asideasa cloud upon her title; and under the familiar principle that he that seeks equity must do equity, I think this court should not set this tax title aside alld declare it void except on condition that cQmplaiJ;lant pay the amount required to redeem the premises when the time for redemption expired, and interest thereon at the rate of 6 per cent. per annum since that time, and also pay all taxes and assessments which the defendant Gage has paid on said premises since his purchase, together with interest thereon at 6 per cent. It may be urged that a tax title is only to be obtainerl ,strictissima juris, and that the defendant, not having complied with the conditions precedent required by the constitution and statute, must be held to have forfeited the inchoate title acquired by his purchase, and this would probably be the rule in a suit in an ejectment upon the facts as I find them here; but the fact is also palpable that the holder of this tax title has paid this assessment-that this payment and that of the subsequent taxes and assessments have enured to the benefit of this complainant, and she should not have this tax title set asilleexcept upon such terms as will reimburse the defendant for
JACKSON V. FOOTE.
the money he has paid for the purpose of protecting her property. The complainant was not obliged to file this petition. She could, if she had chosen so to do, have brought ejectment, made parol proof of her title, and contested the validity of this tax deed at law; but she has preferred to come into a court of equity to get relief, and must make the defendant whole, as I think, to the same extent as if she had redeemed in apt time from the ta.x purchase.
(Circuit Court, N. D. Illinois. April 17,1882.)
CONTRACT OF SALE-FuTURE DELIVEHy-OrTION DEALS.
Where a firm of brokers and commission merchants, dealing in grain and prOVisions on the board of trade in Chicago, transacted business for its customers, some of whom were buyers and. some sellers, under the rules and regulations of the board, intending to deal in time contracts and to settle the differences, so as to avoid paying for and carrying the commodites bought, held, not a dealing in "options to buy or sell at a future time," and is not within the prohibition of thc statute of Illinois. St. Ill. c. 38, § 130. .
SAME-CONTRACTS VALID AND BINDlNli.
Where the indebtedness which accrued from the defendant to the finn of brokers was for commissions earned -by the firm in making trades for the defendant, duly authorized by him, and for moneys actually paid by the firm in the settlement of differences in such trades, and that none of these differences were paid upon" options to buy or sell grain or other-commodities at a further day," but upon sales or purchases of grain or other commodities, where the seller had only an option as to the time of delivery, such contracts are not within the Illinois statute, and are valid and binding upon the parties. 3.
SAME-GUARANTY ON NOTES-BoNA FIDE HorJDER.
Where, under such a contract, defendant became indebted to the firm for balances, and on final settlement gave to tbe firm the notes sued on, the payment of which he guarantied, and the notes were given to the bank, with defendant's guaranty written thereon, in payment of a debt due the bauk by the firm, even though the demand of the firm was tainted as a gambling- claim at common law, defendant cannot be heard. to set up the illegality of the dealings lJetween himself and the firm as a defence to these guaranties in the hands of a bona fide holder.
A guaranty in the hands of a bona fide holder is valid, and not affected by any of the equities between the original parties.
Dent ct Black and Lyman ct Jackson, for plaintilf. L. II. Bisbee and Albion Gate, for defendant.
BLODGETT, D. J. This is a suit on a guaranty of payment by de. fendant of two promissory notes, of $5,000 each, made by the trustees