Opinion of the Court. other hand appellant has done acts, which ought to estop him from now claiming the sale to be void. For instance, he accepted from the company a sum of money which represented their estimate of the difference between the real value of his stock interest and what it sold for. Again, he wrote the company a letter saying: "Please send me my stock note which I understand has been satisfied," etc., and, upon failing to get his cancelled note, commenced a suit in trover for it. Appellant claims, however, that there was an agreement made between himself and the Buckinghams before the organization of the company, by the terms of which the subscriptions to the capital stock were not to be paid in money but out of the profits of the business; and, as confirming his statement in regard to such an agreement, he points to section 9 of the by-laws, adopted at a meeting of the board of directors on September 29, 1873, which provided that a capital stock account should be kept, and that therein the subscribers should be charged with their stock liability and credited with dividends, etc. His position is that, if he had been properly credited with his share of the profits, his liability on his stock subscription would have been discharged. We will not stop to discuss whether such an agreement, if it existed, was not against public policy and contrary to the statute, which requires stock to be paid for, nor whether it was abrogated by the language of the stock subscription, which reads as follows: "We severally agree to pay the said company the sum of $100 on each share at such times and in such installments as shall be required by the board of directors of said company." It is sufficient to say, that, even if such an agreement were valid, its existence is not proven by such a preponderance of the evidence as would justify its being made the basis of affirmative relief. The proof of it consists entirely of the testimony of the appellant himself, while both C. P. and Ebenezer Buckingham deny that there was any such agreement. There may have been and probably was some talk to Opinion of the Court. the effect that the business would be so profitable as to earn enough to pay for the stock. Moreover, the proof does not show, that, in the early part of 1880, the profits were sufficient to pay the stock notes without doing injustice to the creditors by such an application of the surplus. The other subscribers paid their stock notes in money with the exception of a small credit thereon arising from the proceeds of dividends declared in their favor. On July 1, 1876, a dividend of fifteen per cent or $750, and, on January 1, 1878, another dividend of ten per cent or $500, were declared in appellant's favor. These sums, however, he did not suffer to remain in the hands of the company to be applied on his note, but drew them out and used them for other purposes. But even if there was such an agreement as is contended for, it was rescinded by the proceedings which took place on July 27, 1876. On that day there was a meeting of the directors at which appellant was present. Section 9 of the by-laws was repealed and appellant assented to the repeal. A resolution was adopted, that each of the subscribers to the capital stock should give such a stock note as that hereinbefore discussed. The resolution was read over to appellant and agreed to by him, and, in pursuance thereof, he executed his note with the provisions above stated. The proof does not show that any fraud or unfair means were used to induce him to sign the note. By its terms he agreed to pay the $5000 and interest whenever demand should be made on him by the directors, and without limiting his obligation to pay to such amounts as might be coming to him from the profits of the business. We do not deem it necessary to discuss any of the other points made by counsel. We see no reason for disturbing the decree of the court below. The judgment of the Appellate Court is affirmed. Judgment affirmed. 124 194 124 HENRY H. GAGE v. JAMES S. PIRTLE, Trustee. Filed at Ottawa May 9, 1888. 502 1. REMOVING CLOUD UPON TITLE-setting aside tax deed-upon what 3 35 terms. The proper terms on which to set aside a tax deed taken out on an 502 insufficient notice of the purchase, is to require the owner of the land to 113a 1355 pay to the holder of the tax deed the amount paid at the tax sale, and all subsequently paid taxes, with interest thereon, and not the amount required to redeem, and subsequent taxes, with interest thereon. 2. SAME-former decision distinguished. In the case of Gage v. Busse, 102 Ill. 592, the bill was filed before the time of redemption had expired, and it sought to redeem without the payment of an illegal tax in part, and it was not intended in that case to depart from the prior decisions holding that it is only necessary for the complainant to pay the amount of the sale, subsequent taxes and interest. 3. SAME “penalties,” under act of 1885—the statute construed. The penalties mentioned in the act of 1885, amendatory of section 224, chapter 120, of the Revised Statutes, and which are required to be paid as a condition to the setting aside of a tax deed, are those which the holder of the tax deed, or his assignor, shall have paid or be entitled to in procuring his tax deed. APPEAL from the Superior Court of Cook county; the Hon. EGBERT JAMIESON, Judge, presiding. Mr. AUGUSTUS N. GAGE, for the appellant: It is not equitable for one to permit another to invest money for his use, and to discharge his public obligations, upon the faith of a statute, and then defeat the purchaser from receiving the statutory compensation. Moore v. Wayman, 107 Ill. 192; Gage v. Busse, 102 id. 592. Equity follows the law, and when equity first attaches, the statutory penalties have accrued; and public policy requires that these penalties should be paid. The State has entered into the contract with the purchaser at a tax sale, whereby it has promised him a bonus upon the Brief for the Appellee. Opinion of the Court. money invested. Cooley on Taxation, (2d ed.) p. 545, sec. 13, chap. 16; Garrick v. Chamberlain, 97 Ill. 620. The legislature has said the court must decree the repayment of the penalties. Rev. Stat. chap. 120, sec. 224. Messrs. SMITH & PENCE, for the appellee: The rule requiring payment of the sum paid at the sale, and all subsequently paid taxes and assessments, with interest thereon, is the proper one. Reed v. Tyler, 56 Ill. 288; Barnett v. Cline, 60 id. 205; Reed v. Reber, 62 id. 240; Phelps v. Harding, 87 id. 442; Farwell v. Harding, 96 id. 32; Wilmerton v. Phillips, 103 id. 78; Moore v. Wayman, 107 id. 192; Smith v. Hutchinson, 108 id. 662; Peacock v. Carnes, 110 id. 99; Gage v. Hervey, 111 id. 305; Gage v. Nichols, 11d id. 269; Carne v. Peacock, 114 id. 347. Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court: This was a bill to set aside a tax deed as a cloud upon title, alleging as a reason therefor the insufficiency of the service of notice of the tax sale. The court found that the notice given of the tax sale was insufficient, and decreed the relief sought, upon the terms of payment by the complainant to the defendant, within ten days, of the amount paid at the tax sale and all subsequently paid taxes, with interest thereon. We think the court's finding was right as to the insufficiency of the service of notice, but that point is not pressed in the argument, the purpose appearing to be to get a decision of the question. whether the court ordered payment of a sufficient sum of money as the condition of relief, appellant's counsel saying in his brief: "The discussion, then, is upon this question only, Did the trial court err in granting relief without directing the payment of such sum as would have been required to make a redemption, together with interest thereon ?" The tax sale was Opinion of the Court. on October 26, 1880, being for the taxes of 1871 to 1879, both inclusive. The tax deed was made on June 9, 1883. Gage v. Busse, 102 Ill. 592, is relied upon by appellant's counsel as in support of the affirmative of this question. That case is not quite the present one. There was there a small amount of illegal tax included in the judgment for the sale. The bill to set aside the sale was filed a short time before the expiration of the time for redemption. It was there said: "It is not perceived that equity requires that appellant should be shorn of his rights, under the purchase, to any greater extent than in so far as they are affected by the amount of taxes erroneously included in the judgment. On that hypothesis, the decree ought to have been that complainants be allowed to redeem from the sale by paying the redemption money allowed by the statute had the judgment and sale been for the proper amount of taxes, which can be readily ascertained by deducting the erroneous tax from the amount of the judgment.” As the sale there was confessedly just to the extent of the most part of the judgment, it seems to have been considered that the proceeding there should, in equity, be viewed as in the nature of an application to redeem. There was no reference in the opinion to any previous decision of the court, and however the decision may be viewed, under the circumstances of that case, it was not the intention there to depart from the long line of the former uniform decisions of the court, that the condition of the equitable relief granted upon the setting aside of a tax deed should be the payment of the amount paid at the tax sale, subsequent taxes paid, and interest. The long list of such decisions is cited in the brief of appellee's counsel. Gage v. Busse we do not regard as an authority sustaining appellant's claim that an amount equal to redemption money should in this case have been required to be paid. It is insisted that the proviso to the act of the General Assembly, in force July 1, 1885, (Laws of 1885, p. 235,) amendatory of section 224, chapter 120, of the Revised Statutes, |