It is not necessary to consider whether the defendant's plea was or was not sufficient, for the facts alleged in it, anmely, the execution by the county clerk to Gage of the tax-deed of July 24, 1876, and the recording of that deed, are restated and relied on in the answer; and no objection was made in the court below to the answer upon the ground that it set up the same matter presented by the plea. Story, Eq. Pl. § 688.
In respect to that tax-deed, it appears that the sale upon which it was based was made August 29, 1873. Did Gage serve or cause to be served upon Caldwell notice of that sale, as required by the statute? The notice presented to the county clerk at the time of the application for a deed, and which Gage claimed was served August 14, 1874, upon Caldwell personally, was as follows: 'To whom it may concern: This is to notify you that on the 29th day of August, 1873, Henry H. Gage purchased, and afterwards assigned the certificate of purchase to the undersigned, at a sale of lots and lands for taxes and special assessments authorized by the laws of the state of Illinois, the following described real estate, taxed in the name of Peter Caldwell, to-wit. [Here follows a description of various lots, including those here in dispute.] Said taxes and special assessments were levied for the year 1872, and that the time of redemption thereof from said sale will expire on the 29th day of August, 1875. ASAHEL GAGE.'
It is plain, upon the face of the statute, that a purchaser at a sale for taxes or special assessment is not entitled to a deed until the conditions prescribed by section 216 are met; one of those conditions being that the notice required to be served by the purchaser or his assignee on every person in actual possession or occupancy of the land or lot sold, and upon the person in whose name the same was taxed or specially assessed, if upon diligent inquiry he can be found in the county, 'shall state when he purchased the land or lot, in whose name taxed, the description of the land or lot he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire.' The notice that Gage claimed was served on Caldwell is radically defective, in that it did not show whether the sale was for taxes or special assessments. It stated that the sale of 1873 was 'for taxes and special assessments.' This precise question has been determined by the supreme court of Illinois. In Gage v. Waterman, 121 Ill. 115, 118, 13 N. E. Rep. 543, the court said: 'It might be of consequence to the land-owner to know whether his property was sold for a tax or special assessment. This notice did not afford that information.' In Stillwell v. Brammell, 124 Ill. 338, 345, 16 N. E. Rep. 226, the notice was of a 'sale of lands, town and city lots, made pursuant to law, * * * for the delinquent taxes and special assessments levied for the year 1880.' The court held this notice to be materially defective, saying: 'There is a difference between a tax and a special assessment. The notice above quoted fails to inform the land-owner whether his property was sold for a tax or a special assessment. It was therefore defective under the ruling made in Gage v. Waterman, man, 121 Ill. 115, 13 N. E. Rep. 543. The title to be made under a tax-deed is one stricti juris.'
So in Gage v . Davis, 129 Ill. 236, 239, 21 N. E. Rep. 788, where one of the questions was as to the validity of a notice given by the assignee of a purchaser 'at a sale of lots and lands for taxes and special assessments, authorized by the laws of the state of Illinois, * * * said taxes and assessments were levied for the year 1872,' etc., the court said: 'The notice above quoted fails to state whether the lots were taxed or specially assessed. It does not inform the owner whether his lots were sold for a tax or special assessment. It merely tells him that his lots were sold at a general sale of lots and lands for taxes and special assessments levied for the year 1872. The words, 'said taxes and special assessments were levied for the year 1872,' refer back to and define the sale at which the lots in question were sold, but such words cannot be construed to mean that the lots were sold on September 13, 1872, for both taxes and special assessments.'