Dukes v. Rowley

• Decision Date: 30 April 1860
• Citation: 1860 WL 6385,14 Peck 210,24 Ill. 210
• Parties: JOHN DUKES, Appellant,v.REUBEN ROWLEY, Appellee.
• Court: Illinois Supreme Court

24 Ill. 210
1860 WL 6385 (Ill.)
14 Peck (IL) 210

JOHN DUKES, Appellant,
v.
REUBEN ROWLEY, Appellee.

Supreme Court of Illinois.

April Term, 1860.

APPEAL FROM PEORIA.

The placita, or convening order of a court, which shows that the judge was present holding the term, the record showing that business was done by the court, is sufficient; it will be presumed that the other proper and requisite officers were present.

A judgment for taxes, which does not show that the clerk of the Circuit Court has recorded the collector's report, and the certificate of publication, is invalid.

The holder of a tax title must show that the collector's report and certificate of advertisement were properly recorded, that a judgment was rendered, and a precept issued.

A collector's deed is prima facie evidence that the land had been properly listed and assessed; this may be rebutted by appropriate evidence.

The judgment must in some other way than by the use of numerals, state the sum for which it is rendered.

It will be presumed that proper proof was made to the Circuit Court, before judgment, that the certificate returned, was made by the publisher of the paper in which it appeared.

THIS was an action of ejectment, by Reuben Rowley against John Dukes, for the recovery of the north-east quarter of section twenty-two, in township eleven north, range six east of the fourth principal meridian, Peoria county.

[24 Ill. 211]

The declaration was filed at November term, 1857. Trial by jury at November term, 1858; verdict for plaintiff; new trial allowed, and cause continued.

There was a trial by the court at November term, 1859, and a judgment for plaintiff; motion for new trial denied; appeal to Supreme Court allowed. The cause was tried by POWELL, Judge.

The bill of exceptions shows a judgment in the words and figures following, to wit:

“At a Circuit Court begun and held at the court-house in the town of Peoria, in and for the county of Peoria and State of Illinois, on Monday, the twenty-sixth day of May, in the year of our Lord one thousand eight hundred and forty-five, present the Honorable JOHN DEAN CATON, Associate Justice of the Supreme Court of the State of Illinois, assigned to perform the duties of judge of the ninth judicial circuit:” (Here follows a judgment against certain other lands for taxes of 1843.)

Monday, May 26 th, 1845.

+----------------------------+
                ¦“STATE OF ILLINOIS, ¦)¦ ¦
                +--------------------+-+-----¦
                ¦ ¦)¦ss. ¦
                +--------------------+-+-----¦
                ¦PEORIA COUNTY. ¦)¦ ¦
                +----------------------------+
                

Whereas, Smith Frye, collector of said county, returned to the Circuit Court of said county, on the twentieth day of January, A. D. 1845, the following tracts and parts of tracts of land, as having been assessed for taxes by the assessor of said county of Peoria for the year 1844, and has also returned that the taxes thereon remained due and unpaid on the day of the date of the said collector's return, and that the respective owner or owners have no goods and chattels within this county on which the said collector can levy for the taxes, interest and costs due and unpaid on the following described lands, situated in the county of Peoria, and State of Illinois, to wit:

+------------------------------------------------+
                ¦ ¦Description. ¦Acres.¦Tax. ¦Costs.¦
                +----+---------------------+------+-------+------¦
                ¦ ¦N. W. 17, 11 N., 6 E.¦160 ¦$3 36 ¦.40 ¦
                +----+---------------------+------+-------+------¦
                ¦ ¦N. E. 22, 11 N., 6 E.¦160 ¦3 36 ¦.40 ¦
                +----+---------------------+------+-------+------¦
                ¦part¦N. E. 24, 11 N., 6 E.¦71 ¦ac 2 13¦.40 ¦
                +------------------------------------------------+
                

And whereas, due notice has been given of the intended application for a judgment against said lands, and no owner hath appeared to make defense or show cause why judgment should not be entered against said lands for the taxes, interest and costs due and unpaid thereon for the year herein set forth: Therefore it is considered by the court, that judgment be and is hereby entered against the aforesaid tracts and parts of tracts of land, in the name of the State of Illinois, for the sum annexed to each parcel or tract of land, being the amount of taxes and costs due severally thereon; and it is ordered by the court that the said several tracts of land, or so much thereof as

[24 Ill. 212]

shall be sufficient of each of them to satisfy the amount of taxes and costs annexed to them severally, be sold as the law directs.”

To which the defendant made the following objections, to wit:

The caption is insufficient.

It doth not show that the officers required to constitute a court were present.

There is, in fact, nothing to show that any court rendered the alleged judgment.

Said alleged judgment doth not contain the recitals and set forth the facts required by the statute.

Said alleged judgment is manifestly variant from the report and advertisement of the collector.

Said judgment doth not properly show the amount of tax, interest and costs required by law.

Said judgment is otherwise defective.

Which several objections were overruled by the court, and the said judgment read in evidence.

The plaintiff offered in evidence a precept and the return thereto, in the words and figures following, to wit:

“ The People of the State of Illinois to the Sheriff of Peoria County, GREETING:

MONDAY, May 26th, 1845.”

Here follows a recital of the judgment set out above, whereto the following certificate and return are appended:

+----------------------------+
                ¦“STATE OF ILLINOIS, ¦)¦ ¦
                +--------------------+-+-----¦
                ¦ ¦)¦ss. ¦
                +--------------------+-+-----¦
                ¦PEORIA COUNTY. ¦)¦ ¦
                +----------------------------+
                

I, Jacob Gale, Clerk of the Circuit Court, within and for the said county of Peoria, do hereby certify that the foregoing is a full and perfect copy of a judgment and order of the said court, made at the May term thereof, A. D. 1845, and of all proceedings had at said term of said court, on or concerning the list of delinquent lands for the taxes of the year 1844, lying in said Peoria county.

In witness whereof, I have hereunto set my hand and the seal of said court, at Peoria, this seventh day of June, A. D. 1845.

+----------------------------+
                ¦[L. S.]¦JACOB GALE, Clerk.” ¦
                +----------------------------+
                

+----------------------------+
                ¦“STATE OF ILLINOIS, ¦)¦ ¦
                +--------------------+-+-----¦
                ¦ ¦)¦ss. ¦
                +--------------------+-+-----¦
                ¦COUNTY OF PEORIA. ¦)¦ ¦
                +----------------------------+
                

By virtue of the foregoing process, I did, with the assistance of the clerk of the County Commissioners' Court of said county, by his deputy, attend at the court-house in the town of Peoria, in said county, on the ninth day of June, A. D. 1845, at the hour of ten o'clock, A. M., and between that time and three o'clock, P. M., of that day, proceeded to sell each lot or parcel of land described in the foregoing list, at public auction, commencing with the first lot therein described, and sold all the lots and tracts (except those on which the taxes were paid to me before sale), to the W. 1/2

[24 Ill. 213]

N.E. 1/4 of section 32, of township 7 north, 6 east, inclusive; and afterwards, to wit, at three o'clock, P. M., adjourned the sale to ten o'clock, A. M., of the 10th day of June instant; and on June 10th, at ten o'clock, A. M., proceeded to sell in like manner the lands described in said list, from E. 1/2 N.E. 2, of 8 north, 6 east, and sold to the part N.W. 2 of township 10 north, 8 east, inclusive; and afterwards, at three o'clock of the last mentioned day, adjourned the sale to ten...