Chamberlain v. St. Clair Sutherland
| Decision Date | 31 October 1879 |
| Parties | ANGIE P. CHAMBERLAINv.ST. CLAIR SUTHERLAND ET AL. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of Cook county; the Hon. W. W. Farwell, Judge, presiding. Opinion filed November 5, 1879.
Messrs. GRANT & SWIFT, for plaintiff in error; that the sale was void, because made in violation of the constitution, cited Constitution 1870, Art. IX, § 4; People, etc. v. Maynard, 14 Ill. 419; Pierce v. Delemater, 1 Coms. 17; Sedgwick on Con. Law, 107; Hills v. Chicago, 60 Ill. 86; Otis v. Chicago, 62 Ill. 299; Webster v. Chicago, 62 Ill. 302.
Although the judgment was rendered in 1869, the sale after 1870 could only be made by the officer designated by law. The constitution of 1870 changed no rights, but only the method of procedure: Newkirk v. Chapron, 17 Ill. 352; Commonwealth v. Cochituate Bank, 3 Allen, 42; Storey v. Firman, 25 N. Y. 214; Cowkey v. Hart, 14 N. Y. 22; Johnson v. Semple, 31 Iowa, 49; Curtis v. Whitney, 13 Wall. 68; Little v. Gibson, 39 N. H. 505; Sedgwick on Con. Law, 614.
Defendants must show a strict compliance with the law, before the tax deed can be admitted as evidence: Wilson v. McKenna, 52 Ill. 43; Holbrook v. Fellows, 38 Ill. 440; Williams v. Underhill, 58 Ill. 137; Cunningham v. Springer, 88 Ill. 90.
An abstract of title made in the usual course of business prior to the destruction of the records by fire, is admissible in evidence: Rev. Stat. 805; Smith v. Stevens, 9 Chicago Legal News, 363; Richley v. Farrell, 69 Ill. 264; Robinson v. Ferguson, 78 Ill. 538.
Mr. A. C. STORY and Mr. L. J. J. NISSEN, for defendants in error; as to res adjudicata, cited Sutherland v. Phelps, 22 Ill. 91; McConnell v. Swailes, 2 Scam. 571; Young v. Mason, 3 Gilm. 55; Powell on Appellate Proceedings, 371.
An appeal suspends all proceedings upon the judgment appealed from: Long v. Hitchcock, 3 Ohio, 274; Bassett v. Daniels, 10 Ohio St. 617.
Where this fact appears from the record no plea is necessary: Kingsbury v. Buckner, 70 Ill. 514; Ogden v. Larrabee, 70 Ill. 510; Smith v. Wright, 71 Ill. 167.
An affirmance by the Supreme Court on appeal, of the judgment and order of sale against the lands, was also an affirmance of the direction to the city collector to sell, and it is not affected by the new constitution: Rev. Stat. 1874, 82; 2 Taylor on Ev. 1457; Henderson v. Henderson, 3 Hare, 115; Rogers v. Higgins, 57 Ill. 244; Briscoe v. Loyd, 64 Ill. 33; Hamilton v. Quimby, 46 Ill. 90; Aurora v. West, 7 Wall. 101; Hopkins v. Lee, 6 Wheat. 113; Harris v. Harris, 36 Barb. 94; Parish v. Ferris, 2 Black, 606; Majorin v. Tyler, 40 Mo. 406.
The judgment is binding alike upon parties and privies: Kelly v. Donlin, 70 Ill. 378; Kingsbury v. Buckner, 70 Ill. 514; Rising v. Carr, 70 Ill. 596; Sheldon v. Patterson, 55 Ill. 507; Peterson v. Neff, 80 Ill. 25; Johnson v. Van Kessler, 84 Ill. 315; Reed v. West, 70 Ill. 479.
An objection of the want of a precept cannot be made for the first time in this court: Cottingham v. Spinner, 88 Ill. 90.
Under the Burnt Record Act the court may give a decree for the better title without a cross-petition: Robinson v. Ferguson, 78 Ill. 538; Mulvey v. Gibbons, 87 Ill. 377.
As to the admissibility of abstracts of title as evidence: Rev. Stat. 1877, Chap. 117, § 29; Russell v. Mandell, 73 Ill. 136.
The power of attorney was not properly acknowledged, and it was error to admit the deed in evidence: Rev. Stat. 275.
A certificate of evidence which gives the clerk a discretion as to what is to be inserted, is a nullity: L. S. & M. S. R. R. Co. v. McMillan, 84 Ill. 211; St. L. A. & T. H. R. R. Co. v. Dorsey, 68 Ill. 326; Drew v. Beall, 62 Ill. 164.
A motion to strike out may be made at any time before the party joins in or assigns error: Bates v. Ball, 72 Ill. 108; Rule 15 Appellate Court.
This was a petition by plaintiff in error, in the court below, filed March, 1877, under the Burnt Records Act (R. S. 1874, p. 833), for the confirmation of her title in fee to lot 5, block 23, Carpenter's addition to Chicago, the petitioner showing a complete chain of title from the government to herself. The court in its decree found the allegations of the petition in this behalf sustained by the proofs; but also finding that a tax-title, set up by the defendant, Sutherland, was valid and superior, the prayer of the petitioner was denied. Upon this decree the petitioner brought error to this court.
If this tax-title was affirmatively shown to be valid, then it manifestly was superior to plaintiff's title. But was it so shown? The basis of it was a judgment of the Superior Court, at its March term, 1869, on the application of the then collector of the city of Chicago for judgment against this parcel, with divers other parcels of land, as delinquent for city taxes of 1868. Judgment rendered, and the parcels of land included in the collector's report (this parcel being one), were severally ordered to be sold, as the law directs. It appears that the record in this case was taken to the Supreme Court by writ of error, where, at the September term, 1870, of that court, the judgment was affirmed, and the mandate of that court was filed in the court below; that afterwards, the same having been advertised for sale, the land in question was sold August 14, 1871, by the then collector of the city of Chicago, at which sale John Forsythe became purchaser; and he having obtained a tax deed under said sale, afterwards conveyed the same to Satherland, who leased to Garrick for a number of years. The record of said tax proceeding having been destroyed by the fire in Chicago, Oct. 8 and 9, 1871, the defendants gave in evidence a certified copy of a portion of the record taken to the Supreme Court, as aforesaid. Section 23 of the act under which this petition was filed declares “that no tax deed or certificate of tax sale based on any proceedings, the record of which shall appear to have been destroyed, as aforesaid, shall be received in any of the courts of this State as prima facie evidence of the regularity of such proceedings, but the burden of proof shall be upon the person claiming under such deed or certificate to show the regularity and legality of all such proceedings; in order to sustain the validity of any tax deed or sale for any tax or taxes, assessment or assessments, in any county to which the provisions of this act are applicable, in any suit or proceeding whatever, it shall be necessary for the party relying upon any such deed or sale to show affirmatively that each and all of the provisions of the law in respect to assessment, levy, sale and deed of the lands affected or to be affected by any such deed or sale, as aforesaid, have been in all respects complied with; and no presumption shall be indulged in favor of any such tax deed or sale; and it shall not be sufficient to show a collector's report, notice or judgment, order of sale, sale notice, notice of sale, tax affidavit and deed, anything in this law, or any other law of this State to the contrary notwithstanding.”
Tested by the stringent provisions of this statute, which are applicable, the evidence in support of the alleged tax title is radically deficient. It consists (1) of a certified copy of portions of the transcript in the Supreme Court of the record of judgment of the Superior Court against the land in question for the non-payment of the city taxes for 1868, which included the city collector's report and application for judgment, certificate of printer as to publication of notices and the judgment; (2) evidence of the fact of sale by the city collector, Aug. 14, 1870, notice for deed, affidavit and tax deed, from none or all of which can any presumption, under the statute above quoted, be indulged in favor of such deed or sale. The burden was upon defendants to show by affirmative evidence compliance with the provisions of the charter in respect to the assessment, levy, sale and deed. There was none as to the assessment or levy of the tax, nor as to the process for sale provided for in section 17, Chap. 9, of the then charter of the city. Gary's Laws, page 90. For want of this evidence the alleged tax-title was not shown to be valid, even conceding that the city collector had authority to make the sale.
But counsel for defendants insist that they were relieved from the burden of proof imposed by the statute, because persons, with one of whom plaintiff is in privity, after the tax sale and before the deed was made, filed a bill in the Superior Court to set aside the judgment and tax sale, and to restrain the making the deed, to which defendants were a party, and that a temporary injunction was granted. The bill in that case was dismissed for want of prosecution, so that the final order in it had none of the effect of res adjudicata, and they are compelled to...
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