Little v. Herndon/Dissent Miller
Mr. Justice MILLER, dissenting.

I dissent from the opinion of the court in this case on the construction of the statute of Illinois of February 21, 1861.

That act mentions certain facts which may be shown without any condition precedent in order to establish the invalidity of a tax deed. These are: 1. That the tax had been paid before sale. 2. That the land was not subject to taxation. 3. That it had been redeemed from the tax sale. 4. That the notice required by the constitution had not been given. 5. That the description of the land was not sufficiently definite.

It then provides that a tax deed, made after the passage of that act, shall not be questioned in any suit for any other cause, unless the party wishing to contest the same shall tender to the claimant under the tax deed, or deposit in the court in which the suit is pending, for his use, the amount of redemption-money required by law to redeem, and ten per cent. per annum interest.

The defendant in this case offered his tax deed, and required of the court to have the amount which he showed by the deed and tax receipts paid or deposited, before the plaintiff should be permitted to question it. The court refused to receive the tax deed in evidence, and permitted the plaintiff to contest it and exclude it from the jury on the ground that no judgment was produced by defendant under which the tax sale was made. The absence of such a judgment is not one of the grounds mentioned for which a deed may be contested without paying the redemption-money as a condition precedent. The decision of the court makes that part of the statute requiring the payment as a condition precedent to contesting the deed a nullity. The policy of the act is clear, and it is wise. It has been a desideratum for years to provide a law which would secure payment of taxes on real estate, and at the same time give the owner of the property, who may not have been prompt, some reasonable opportunity to save it. This law is happily conceived. It says in effect if no valid tax was levied, or if it has been paid, or no notice was given of proceedings for sale, the deed is void, and this may be shown at any time without condition. But if there has been a valid levy of a tax and a sale, and the tax has never been paid, either before or after sale, the party who should have paid this tax and has neglected to do so must pay it now before he can contest the deed made by the proper officer on such sale. This is fair, it is just, and would tend to procure bidders at tax sales, and to admit of redemption on just terms. As there is no decision of the State court of Illinois directly on this point, under this statute, I regret the construction that this court has placed upon it.