Brown v. Hogle

• Decision Date: 31 January 1863
• Citation: 30 Ill. 119,20 Peck 119,1863 WL 3027
• Parties: CYRUS R. BROWN et al., Plaintiffs in Error,v.MICHAEL HOGLE, and JOHN CHAMBERLAIN, Defendants in Error.
• Court: Illinois Supreme Court

30 Ill. 119
1863 WL 3027 (Ill.)
20 Peck (IL) 119

CYRUS R. BROWN et al., Plaintiffs in Error,
v.
MICHAEL HOGLE, and JOHN CHAMBERLAIN, Defendants in Error.

Supreme Court of Illinois.

January Term, 1863.

ERROR TO IROQUOIS.

Where a bill in equity sets forth various claims to the interposition of the court, and the defendant files a general demurrer, the demurrer must be overruled if any of the claims afford a proper case for the jurisdiction of the court.

The act of 1861, in reference to the time for the collection of taxes in counties, which have adopted township organization, was intended to alter the time for the collection of the tax of 1860 only, and does not affect the general revenue law except for that year.

The requirement, that the notice, and the application for judgment against delinquent lands shall be to the June term of the court, is peremptory and not directory merely, and an application at a different term, and judgment, will not be sustained. A judgment and sale under such circumstances is void and may be attacked collaterally.

It is fraud for a tenant in common to permit the land he holds in common with others, to be sold for taxes, and he, himself become the purchaser for his own exclusive benefit.

At a tax sale it is the duty of the treasurer to attend at the court-house on the day specified in the advertisement, and, between certain hours, offer each tract of delinquent land separately, so as to allow fair competition, and to collect the taxes at the least possible loss to the owner.

[30 Ill. 120]

To allow a person to select from the tax list a portion of the delinquent lands, and become the purchaser of the whole for the tax due, without competition, is contrary to equity, and fraudulent.

THIS is a bill in chancery, filed in the Iroquois Circuit Court, by the complainants, against the defendants, to set aside certain judgments rendered and entered, in the County Court of Iroquois county, against certain lands described in the bill of complaint, and, also, to cancel two certain certificates, given at the time of the sale of said lands; one to Michael Hogle, and one to one A. G. Willard, and afterwards assigned to Hogle, by Willard.

The defendants demurred to the bill, and it was dismissed by the court.

The facts in the case are stated in the opinion.

JAMES FLETCHER, for Plaintiffs in Error.

The said complainants and defendants have agreed in writing, that the above entitled cause shall be decided by the Supreme Court in the Second Grand Division, at the next term of said Supreme Court, instead of in the Third Grand Division.

It is also agreed and stipulated in writing, that the county of Iroquois adopted the township organization law in the spring of 1856, and has been operating under said township organization law ever since that time.

The law of 1861, entitled “An act to postpone the collection of the revenue for 1860,” changed the time for the collectors of the several townships, in counties which had adopted township organization, to make return of the warrants issued for the collection of taxes for the year 1860, from the time required by the law then in force, which time was thereby extended to the 15th day of April, 1861. And the county treasurer was, by said act, commanded to apply for judgment against delinquent lands at the June term of the County Court; and the county treasurer was required to make final settlement with the auditor on or before the 10th day of July next thereafter. See Session Laws of 1861, page 168, section 1.

[30 Ill. 121]

By the laws in force at the time said act of the legislature was passed, the township collectors of the several townships, in counties which had adopted township organization, were required to return their said warrants and make settlement with the treasurer, etc., on or before the 15th day of February of each year. Session laws of 1853, page 20, section 48, and other sections in the revenue law of 1853.

And all the lands upon which the taxes remained unpaid on the 15th day of March, of each year, were declared delinquent by the laws of 1855, and all such lands were commanded to be sold on the second Monday of May. Session Laws of 1855, page 39, section 10.

The laws of 1853, required the collector to publish an advertisement, in some newspaper in his county, etc., which advertisement should be once published at least four weeks previous to the term of the County Court at which judgment should be prayed; and should give notice therein that he would apply, at the_____term of said court, for judgment against the delinquent lands of his county, for the taxes, interest and costs due thereon; and should also give notice that, on the first Monday next succeeding the day fixed by law for the commencement of said County Court, all said lands would be exposed to public sale, at the place of holding said court, etc.; and that said advertisement should be deemed and taken to be sufficient and legal notice, both of the application for judgment, and also the sale of said lands. Session Laws of 1853, pages 74 and 75, section 26.

The laws of 1855, page 39, section 10, as aforesaid, fixed the time of the sale of said delinquent lands, upon the second Monday of May next after they became delinquent; and the said law of 1853, declared that said lands should be sold on the first Monday next succeeding the time fixed by law for the commencement of the County Court; so that the said laws of 1853 and 1855, taken together, fix the time of the holding of the County Court on the first Monday of May, at which judgment against delinquent lands should be rendered, and the second Monday of May, when they should be sold.

If, for any cause, the County Court should not be holden at

[30 Ill. 122]

the term at which judgment should be prayed, then the cause stood continued until the next term by operation of law, and judgment should be rendered at the term to which it was continued. Session Laws of 1853, page 77, section 30.

By the laws of 1853, page 84, sections 52 and 53, it was made the duty of the treasurer to attend at the court-house, in his county, on the day specified in the notice so given by him, as aforesaid, and then and there, between the hours of ten o'clock A. M. and six o'clock P. M., proceed to offer for sale, separately, each tract of land, etc.; the person at such sale offering to pay the taxes and costs charged on each tract, for the least quantity thereof, to be taken from the east side of such tract, should be the purchaser. Thus stood the law in relation to the collection of the revenue of the several counties in this State, which had adopted the township organization law, at the time of the passage of the said act of the legislature of 1861; and from the laws in force at that time, the following facts and requirements of the law are deducible, to wit:

The township collectors were required to return their warrants, and make settlement with the treasurer, on or before the 15th day of February of each year; and said collector was required to publish a notice of all the lands as delinquent, the taxes upon which had not been paid, on the 15th day of March; in which advertisement he should give notice that he would apply, at the May term of the County Court of his county, for judgment, and also therein give notice that he would sell the lands against which judgment should be rendered, on Monday next after the rendition of said judgment, and that the County Court, at the time appointed in said notice, should render judgment against the said delinquent lands; unless said court should be prevented from so doing, from some cause, and should said court be prevented from so doing, then judgment should be so rendered at the next term; and on the Monday next following the rendition of such judgment, the treasurer should attend at the court-house, in his county, and then and there, publicly, proceed to offer each tract of land separately, to the person offering to pay the

[30 Ill. 123]

taxes and costs due, for the least quantity of such tract, to be taken from the east side therof.

1. The first point in this case, made by the bill in chancery, and which the complainants insist upon, is, that the application for judgment against the delinquent lands, among which were the lands described in said bill of complaint, was not made by the collector of said county, at the June term of the County Court of said county, as the said first section of said act of the legislature required. See Session Laws of 1861, page 168, section 1.

On the contrary, the said treasurer gave notice that he would apply for such judgment, at the July term of said County Court; and he did so apply for judgment, and the County Court rendered judgment against said delinquent lands at said July term, without any authority to do so. Said County Court had no authority to render said judgment, at the July term, unless it was authorized to do so by the statute. The said act of the legislature of 1861, certainly gave no such power. Then it follows that it had no such power, unless the laws in force at the time of the passage of said act still remain in force, notwithstanding said act, at the time of the rendition of said judgment; and being in force, they conferred such authority upon said court, If said laws were in force at the time of the rendition of said judgment, then both the old laws, and the said act of 1861, were in force, or else the act of 1861 was a nullity, and had no binding force or effect whatever, and conferred no authority upon said court, at all, at any time, to have rendered said judgment; and, in that case, the said act of 1861 would have given it no authority to have rendered a judgment at the June term. If the old laws were in force, then it must have been the laws of 1853, and the laws of 1855, above referred to, which commanded the treasurer to advertise said delinquent lands, and give notice that he would apply to the County Court, on the first Monday of May, for a judgment against them...