Bruce v. Schuyler

• Decision Date: 31 December 1847
• Citation: 1847 WL 3859,9 Ill. 221,46 Am.Dec. 447,4 Gilman 221
• Court: Illinois Supreme Court
• Parties: JAMES BRUCEv.ROBERT SCHUYLER et al.

4 Gilman 221

9 Ill. 221

1847 WL 3859 (Ill.)

46 Am.Dec. 447

JAMES BRUCE

v.ROBERT SCHUYLER et al.

Supreme Court of Illinois.

December Term, 1847.

EJECTMENT, in the Adams circuit court, brought by the appellees against the appellant, and heard before the Hon. JESSE B. THOMAS and a jury, at the September term 1843.

At the trial, the plaintiffs offered in evidence a deed from the auditor, of the premises in controversy, to Stephen B. Munn, assignee of Zophar Case, dated Nov. 8, 1833, founded upon a a sale, on the 12th of January, 1833, for the taxes of 1832, without any evidence to support said deed. They also deduced title from Munn to them. Thereupon the parties agreed, that the jury should find a verdict for the plaintiffs, subject to the opinion of the court upon the sufficiency of the title adduced, and if the court should be of opinion that it was sufficient, then, whether seven years' possession of the premises by the defendant next preceding the commencement of the suit under title, etc., would be a bar to the suit.

Judgment was entered in favor of the plaintiffs, and the defendant appealed to this court.

N. BUSHNELL, for the appellees.

In January, 1833, the land in controversy was sold by the auditor for the tax of 1832, under the revenue law of 1827, and the amendatory acts of 1829 and 1831, and in November, 1833, the auditor executed to the purchaser a deed in the form prescribed by the act of 1827. This act, after classifying the taxable lands and providing for the listing of non-resident lands for taxes, for the rate of taxation and the mode of making out and advertising the delinquent lands for sale, by the fourth section provides, that on the first Monday of January annually, at the state house at the seat of government, “the auditor shall proceed to sell all the lands advertised as aforesaid,” or so much thereof as may be sufficient to pay the tax, interest and cost on each tract, and that “the auditor certify to the treasurer the amount of all sales; and upon receiving the purchase money, the treasurer shall give the purchaser a receipt for the same; and on presenting such receipt to the auditor, the purchaser shall be entitled to receive at his option either certificate of such purchase, or a deed,” in the form given in that section purporting to be executed by the auditor.

The twenty-fifth section provides that at “all sales of land for taxes whether by the auditor or sheriff, the officer selling shall, previous to the sale, designate in what part of the tract the part sold shall be located, and shall give his certificate or make his deed accordingly.” The revenue law passed Feb. 27th, 1833, provides that the sales for taxes shall be thereafter made by the clerks of the counties in which the lands are situated, at their respective county seats; and by the 18th section it is provided, that “the third, fourth, fifth and twenty-seventh sections” of the act of 1827, “and all other acts and parts of acts as come within the purview of this act, be and the same are hereby repealed.” It is now insisted that by this repeal of the fourth section of the act of 1827, the power of the auditor to execute deeds on sales made by him while that section was in force, has been taken away; and that the auditor's deed given in evidence in this case, having been executed since the repeal, is void. This we deny. On the contrary, we insist that the authority of the auditor to execute deeds on sales made under this law, existed independent of an express provision of the statute to that effect; that the repeal of this power, whether express or implied, was not within the spirit, object or letter of the act of 1833; that it was not within the meaning and intention of the legislature; and that, if intended, it was unconstitutional.

I. The auditor being authorized by the fourth section to sell lands for taxes, and having executed the power while that section was in force, would have been authorized to execute deeds to the purchaser without any express provision upon the subject. That such had always been the understanding of the legislature, a reference to the prior revenue laws will clearly demonstrate. By the revenue act of 1819, the first after the organization of the state government, it was made the duty of the sheriff of the county in which the seat of government was situated, to sell non-resident lands for taxes; and of the sheriffs of the several counties to sell the delinquent lands of residents; and the sheriffs selling, were required to give each purchaser “a certificate of the sale made to him,” which should vest the title in the purchaser. Laws of 1819, 314, §§ 6, 9, 10. By the law of 1820-1, the auditor was substituted in the place of the sheriff to sell the delinquent lands of non-residents, and was authorized to do “all such acts and things in relation to advertising and selling the lands” as were required of the sheriff at the seat of govern ment, by the law of 1819. Laws of 1820-1, 182, § 1. By the law of 1822-3, the auditor was directed to sell delinquent non-resident lands, and to give a deed to the purchaser which should vest in him the title; and while the sheriffs were required to sell delinquent resident lands situated in their respective counties, no provision was made for giving to the purchaser either a “deed” or ““a certificate of sale,” although the law of 1819, authorizing the sheriff to execute such certificates, was thereby repealed. Laws of 1822-3, 204, §§ 7, 13, 30. The law of 1824-5, prohibits the sale of resident lands by the sheriffs, but requires the sheriffs to be furnished with a list of the taxable lands both of residents and non-residents, and to collect the taxes and report to the auditor, who is directed to “advertise and sell” all the delinquent lands on such list in the same manner as the property of non-residents. Laws of 1824-5, 173, §§ 2, 5, 8. And by the fourteenth and seventeenth sections, the auditor was also directed at every sale “to offer for sale” all lands that had been or might thereafter be struck off to the state. So again by the law of 1827, the auditor was required to sell certain lands for taxes. Laws of 1826, 92, § 8. But in neither of the three last cases did the statutes make any provision for securing to the purchaser a deed, a certificate of sale, or any other evidence of his purchase. Thus, by virtue of these statutes, delinquent lands were to be sold, at one time by the auditor, at another by the sheriff; at one sale “a certificate of sale,” at another “a deed” was to be executed to the purchaser; and at still a third, the auditor or sheriff was authorized to execute neither a certificate or deed, except as the power to convey could be implied from the mere power to sell. Of the seven cases enumerated in these statutes for the sale of delinquent lands, in two only is the power to execute any form of conveyance expressly given; in all the others it must be supplied, if at all, by implication from the power to sell; while in all the sales provided for, the language of the statute as to what shall be sold is substantially the same, showing a clear intention on the part of the legislature that in each case the land, and not merely an interest in it, be sold and the title vested in the purchaser. Even in those two cases in which a deed or certificate of sale was expressly authorized, no form was provided for either of them. This was left to the discretion of the officer selling. To remedy this inconvenience was passed the law of 1826, having for its sole object to provide the form of the deeds to be thereafter executed by the auditor, whether on prior or future sales. Laws of 1826, 18, § 1. This statute contains no new grant of power to the auditor. It does not purport to confer on him the authority to execute deeds on past sales. On the contrary, it clearly recognizes the power, and simply prescribes the mode of its execution. It also fnrther proves, if further proof were required, that on prior sales, it was in all cases the land and the title to it that was sold; for this deed, when executed in the form prescribed, is without any distinction of past or future sales, declared “to vest the title in the purchaser.”

In this state of things was passed the law of 1827, the act under consideration. This was a mere revision of the revenue system, collecting into one act the various provisions of six statutes, embodying all of the principles and the useful details of prior legislation on the subject, with such other details as experience suggested. The fourth section confers upon the auditor the power to sell, and upon the purchaser the right to a deed in the prescribed form. By the twenty-fifth section the power to execute deeds is given in express terms. Strike out this latter section and would not the authority of the auditor to execute deeds still remain? Would not the right of the purchaser to receive a deed, as established by the fourth section impose on the auditor a correlative duty, and imply the power to make it? Would not this power be also as forcibly implied from the power to sell? That such has always been the understanding of the legislature, we have already seen. That it is also the law, seems hardly doubtful. The idea of a sale of land in this state includes within it, as a matter of law, the idea of a conveyance. This is not only the usual, it is the necessary mode of effecting a sale. With us there are no charters of feoffment deriving their efficacy from the livery of seizin; no transmission of title by mere acts in pais; but only by deed, by some mode of conveyance deriving its effect from our local statutes, and containing apt terms to pass the title. The recording law, the statute of frauds and of conveyances, the whole system of state legislation on the subject of land titles, point to and establish the conclusion that titles to land can be affected only by evidence in writing. It is the “deed or other conveyance in...