dissenting:
Before and at the time of the tax sale, and subsequent to that time for more than two years, the owner of the property in question was Levi H. Thomas, and one Blanchard had an interest in the property as a trustee, under a deed of trust made by Thomas to secure to certain creditors of Thomas money due to them. The title of Thomas and the interest of Blanchard were shown by the contents of the books in the recorder’s office. Thomas and Blanchard each was, during all that time, a resident of Cook county, with a place of business in the city of .Chicago, and the name of each appeared in the directory for that city.
The only notice of the kind, as to time for redemption, was a written notice, served personally on the 3d day of September, 1874, on one P. N. Duval, being at that time (as it is claimed) the occupant, and the only occupant, of the land. No notice whatever was given, either personally, by publication, or otherwise, either to the owner, or to Blanchard, or to the creditors named in the deed of trust.
Section 5, of art. 9, of the constitution of 1870, says: “The right of redemption from all sales of real estate for the non-payment of taxes or special assessments, of any character whatever, shall exist in favor of owners and persons interested in such real estate for a period of not less than two years from such sales thereof. And the General Assembly shall provide by law for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale, * * * and when the time of redemption shall expire: Provided, that occupants shall in all cases be served with personal notice before the time of redemption expires.” The General Assembly, in an attempt to do the thing thus commanded by the constitution, provided, in sec. 216 of the Revenue law of 1872, that “hereafter no purchaser, or assignee of such purchaser, of any land, town or city lot at any sale of lands or lots for taxes or special assessments, * * * shall be entitled to a deed * * * until the following conditions have been complied with, to-wit: Such purchaser or assignee shall serve, or cause to be served, a written or printed (or partly written and partly printed) notice of such purchase on every person in the actual possession or occupancy of such land or lot, and also the person in whose name the same was taxed or specially assessed, if upon diligent inquiry he can be found in the county, at least three months before the expiration of the time of redemption on such sale. * * * If no person is in the actual possession or occupancy of such land or lot, and the person in whose name the same is taxed or specially assessed can not, on diligent inquiry, be found in the county, then such person or his assignee shall publish such notice in some newspaper printed in such county, * * which notice shall be inserted three times—the first time not more than five months, and the last time not less than three months, before the time of redemption shall expire.”
■ It is insisted by appellant, that under this constitutional provision no notice to the owner was essential to the validity of a tax deed until the requisites and mode of such notice were prescribed by statute, and that hence a compliance with the express provisions of the statute, when enacted, is all that can be necessary to the right to a tax deed. I do not concur in this view. As I understand the constitution, it meant to provide, and in fact did provide, that in all cases of sale of lands for taxes the owner should have a right of redemption for at least two years from the date of the sale, and should have an opportunity to make such redemption within the period limited, after having notice, by publication or otherwise, of the fact of the sale, and of the time when the time for redemption should expire; and it was left for the General Assembly to specify what mode of notice, other than by publication, should be deemed reasonable, and to fix upon some reasonable length of time in which such owner should have such notice before the expiration of the time for redemjotion. It was never meant that the constitutional right of the owner to reasonable notice (that he was liable to lose his land in that way) should be left to depend upon the action of the legislature. Under the constitution of 1848, the right to notice in this regard was granted and secured to occupants and persons in whose names the land was assessed. That constitution specified in detail the time and mode of giving such notice. By the constitution of 1870, this right to have such notice was granted to the. owner, and the legislative details as to time and mode (found in the constitution of 1848) are referred to the discretion of the General Assembly.
Keeping this in view, we find the act of 1872 to declare that where land is assessed or taxed in the name of any one as the owner, the purchaser at the tax sale may lawfully assume, for this purpose, that such person is in fact the owner, and that in such case personal notice on such person, if to be found in the county, (and if not, then notice by publication,) shall be deemed, for this purpose, notice to the owner, if the land be unoccupied, and in case the land be occupied, then, in addition to notice to the person in whose name the land is listed, a personal service upon the occupant shall be given-. There is no provision, however, that personal service of notice on the occupant shall be sufficient, in case no name is given as that of the owner in the tax list, or that in such case no notice need be given the owner. In that case the requirement of the constitution that the owner shall have reasonable notice, by publication or otherwise, remains, and the statute being silent upon the subject, the utmost that can be reasonably claimed in behalf of the holder of the certificate is, that he may give such notice to the owner as is, in fact, reasonable under the circumstances,—this to be judged of by the courts, whenever the same may come in question.
I think that where the title of the owner is shown by the recorded title papers in the public office of the recorder, reasonable diligence must be used to find and serve notice personally upon such owner, if a resident of the county, and in case of failure to find the owner, by reason of non-residence or otherwise, notice by publication, or some other reasonable mode, must be made before any tax deed can lawfully issue.
Attention has been called to certain remarks of the judge who delivered the opinion filed in the case of Garrick v. Chamberlain, 97 Ill. 620. In that case it seems notice was given only to the person in the actual possession of the lot, and not also to the owner of the lot, and it was objected that the notice was not sufficient, and this constitutional provision was cited. On that question it is said, in that opinion: “Proof was made of the service of notice upon the person who was in actual occupancy of the premises, and that he was the only one in such occupancy, and that the lot was not assessed in the name of any person. This we regard' as a compliance with the statute, and that it is sufficient to comply with the statute. ” This remark, in that opinion, can not be regarded as binding authority. It never had the sanction of a majority of the court. Three of the judges dissented entirely to the conclusion reached in that case, and the fourth, concurring in the conclusion reached, declared that he did not concur in all the reasoning found in the opinion.
There were two other reasons assigned in that opinion why the objection of want of proof of sufficient notice of the fact of the tax sale should not prevail in that case. First, that it was a bill to set aside the tax deed, and the bill stated several specific objections to its validity, but it did not charge that the tax deed had been issued without sufficient notice of the fact of the tax sale, or without notice to the proper parties, hence it was said the question was not in issue, and could not be raised, for the first time, in a court exercising appellate jurisdiction only. Again, it was said, as a reason why the invalidity of the tax deed could not be relied upon in that case, that before that suit a former bill by the same complainant, for the same purpose, had been brought against the same parties, and by order of the court had been dismissed without any qualification, such as without prejudice, and therefore the deed had been adjudged valid, and its validity could not again be questioned between the same parties. If the question now raised here was not' in issue in Garrick v. Chamberlain, supra, and if the question could not be considered in that case because it had become res judicata in another case previously decided, the passing remark as to what the court thought on that subject, had it been before the court, could in no event be of much importance; and when a majority of the court expressly refuse to indorse the remark, it ought not to have the effect of controlling the ruling on a question directly presented for our determination.
• I think the decree in this case ought to be affirmed.
Scholfield and Mulkey, JJ, also dissent.