Conway v. Cable

• Decision Date: 30 April 1865
• Citation: 87 Am.Dec. 240,1865 WL 2789,37 Ill. 82
• Parties: MILES W. CONWAYv.PHILANDER S. CABLE et al.
• Court: Illinois Supreme Court

37 Ill. 82

1865 WL 2789 (Ill.)

87 Am.Dec. 240

MILES W. CONWAY

v.PHILANDER S. CABLE et al.

Supreme Court of Illinois.

April Term, 1865.

WRIT OF ERROR to the Circuit Court of Rock Island county; Hon. IRA D. WILKINSON, Judge.

This was a suit in chancery by Conway, complainant, against defendants as purchasers under a tax sale, to set aside their deed as void. Defendants in their answer, admit irregularities in the proceedings by which the sale was had, but claim that these were cured by a special Act of the Legislature legalizing these particular irregularities, passed February 25th, 1861, and also claim the benefit of the general Act of February 21st, 1861. This declares that all deeds hereafter made for land sold for taxes shall be void, if the taxes shall have been paid before the sale, or the land was not subject to taxation, or has been redeemed, etc., and for other irregularities, but adds that no such deed shall be questioned unless the contestant shall tender to the claimant, or pay into court, the amount of redemption money, with ten per cent. interest.

The decree in the court below finds the case to be within the Act of February 21st, 1861, and that said Act is constitutional. It therefore dismisses the bill. Writ of error.

J. B. HAWLEY and Messrs. B. C. COOK and CHARLES M. OSBORN for plaintiff in error.

GEO. W. PLEASANTS for defendant in error. Mr. CHIEF JUSTICE WALKER delivered the opinion of the court:

It being admitted that the sale was insufficient to pass title or to constitute a defense to the bill, the question is presented whether a defense is given by either of those acts. The act of the 22d of February, 1861, in terms fully ratifies and confirms the arrangement entered into by the officers and the purchasers at the sale. It also declares that sales made and certificates given shall not be construed to be invalid, by reason of the arrangement, by the failure of purchasers to pay the amount of their bids otherwise than as contemplated by the arrangement. It will be seen that the arrangement, at the time it was entered into, was illegal and without warrant of law. If, therefore, it has any validity, it must be by reason of this enactment. But few principles are better settled than that the Legislature is powerless to divest, by enactment, an individual of a vested legal right. That laws, prospective in their character, enjoining the performance of an act, and declaring that its omission shall subject the person omitting the duty to a penalty, is clearly within the legislative power, is equally true. And that the Legislature may pass a law authorizing sales for taxes subsequently made, to be on credit, there can be no doubt.

In such a case as the present, however, it seems to us, there can be no doubt that a citizen may permit his real estate to pass to sale for delinquent taxes, and rely upon the want of compliance with the law authorizing a sale. He, by the law then in force, incurred no forfeiture, by permitting his lands to be struck off at a sale for taxes, not conducted according to law. The purchaser was bound to see that all of the essential requirements of the law had been performed before he could acquire any title at a tax sale. This proceeding, by which an individual is deprived of his property, in a summary mode, and usually for but a trifling part of its value, has always been held, to require a strict compliance with the provisions of the law authorizing the sale. No one can imagine, that were a sheriff to sell real estate without a judgment, or an execution, that the Legislature could afterwards impose such a condition upon the owner, before he could make a defense to a suit for the recovery of the land. To do so, would be to transfer, by legislative enactment, the property of one person to another. We are unable to see any difference between an invalid sheriff's and an invalid tax sale. As well might the legislature attempt to impose conditions upon the assertion...