Eagan v. Connelly

• Decision Date: 01 October 1883
• Citation: 107 Ill. 458,1883 WL 10323
• Parties: THOMAS EAGANv.SUSAN CONNELLY
• Court: Illinois Supreme Court

107 Ill. 458

1883 WL 10323 (Ill.)

THOMAS EAGAN

v.SUSAN CONNELLY

Supreme Court of Illinois.

Filed at Springfield Oct. 1, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Ford county; the Hon. FRANKLIN BLADES, Judge, presiding.

Mr. CALVIN H. FREW, for the appellant:

The first error assigned is, that the appellee did not put himself in position to question any of the tax proceedings in this case. The statute then in force required that the plaintiff below should show that she “was the owner of the land at the time of the sale,” and that all taxes due upon the land have been paid by such person, (chap. 89, sec. 73, Gross' Stat. p. 575, sec. 15,) which was not done. Curry v. Hinman, 11 Ill. 420.

The court erred in excluding the copy of the delinquent list, judgment and order of sale, and the certificate thereto by the county clerk, attached by leave of the county court.

As to the authority of the court to allow the amendment, counsel cited Rev. Stat. chap. 7, secs. 6, 7, 8, 9; Doty v. Colton, 90 Ill. 453; Cairo and St. Louis R. R. Co. v. Holbrook, 72 Id. 419; Church v. English, 81 Id. 442; Dunham v. South Park Comrs. 87 Id. 185; May v. People, 92 Id. 343; Grassly et al. v. Adams, 71 Id. 550; Chicago Planing Mill Co. v. Merchants' National Bank, 86 Id. 587.

The copy of the judgment order is in no sense process. Curry v. Hinman, 11 Ill. 420.

In this case, J. T. Wilson was a bona fide purchaser, and had nothing to do with the irregularities of the officers. Phillips v. Coffey, 17 Ill. 154; Rorer on Judicial Sales, secs. 139, 589, 659, 661; Durham et al. v. Heaton, 28 Ill. 264; Goodwin et al. v. Mix, 38 Id. 116; Iverson v. Loberg, 26 Id. 179; Kruse v. Wilson, 79 Id. 233; Stow v. Steel, 45 Id. 333.

These authorities sustain the doctrine the omission of the clerk was a mere irregularity, and that, in this case, can not be attacked collaterally. The court erred in admitting the book as evidence of the statute of Ohio. There was no sufficient proof or compliance with our statute.

The certificates of acknowledgment do not certify that Emily S. Bruce is the wife of Cosmore G. Bruce--a like defect in Key's deed.

Mr. M. H. CLOUD, for the appellee:

The statute book of Ohio was properly admitted in evidence. Rev. Stat. 1874, p. 490, sec. 10; Charlesworth v. Williams, 16 Ill. 338; 1 Greenleaf on Evidence, sec. 489.

The claim that the Ohio statute required the officer to certify that Emily S. Bruce was the wife of Cosmore G. Bruce, is not supported by the statute. A tax title, if a title at all, is so stricti juris. Altes v. Hinckler, 36 Ill. 267.

The precept under which the sale was made was not certified by the clerk, as required by the statute. (1 Gross' Stat. 1873, pp. 604, 605, sec. 164.) It performs the same office as an execution. Pitkin v. Yaw, 13 Ill. 252.

An execution without a seal is void. Davis v. Ransom et al. 26 Ill. 200.

An amendment will not be allowed after such a lapse of time. O'Conner v. Wilson, 57 Ill. 226.

The amendment of the precept was unauthorized. An execution is not amendable, if void. McCormick v. Wheeler, 36 Ill. 122.

Material amendments are not allowed at a subsequent term of the court. Lilly v. Shaw, 59 Ill. 72; Lill v. Stookey, 72 Id. 295.

The amendment was made without notice to the appellee. Such an amendment is void. Swift v. Allen, 55 Ill. 303; Bryant v. Vix, 83 Id. 14; Massachusetts Mutual Life Ins. Co. v. Kellogg, 82 Id. 616; Gouch v. Patterson, 94 Id. 525; Thrifts v. Fritz, 101 Id. 457. A tax deed is void unless supported by a valid judgment and a valid precept. Hinman v. Pope, 1 Gilm. 141; Atkins v. Hinman, 2 Id. 437; Pitkin v. Yaw, 13 Ill. 252; Bailey v. Doolittle, 24 Id. 579; Holbrook v. Dickinson, 46 Id. 286; Wilding et al. v. Horner, 50 Id. 50; Williams et al. v. Underhill, 58 Id. 138; Gage v. Lightburn et al. 93 Id. 248.

It is a settled principle of the common law that a party claiming title under a summary and extraordinary proceeding must show that all the indispensable preliminaries to a valid sale, which the law has prescribed, have been complied with, or the conveyance to him will pass no title. Garrett v. Wiggins, 1 Scam. 131; Conway v. Cable et al. 37 Ill. 88; Fischer v. Eslaman, 68 Id. 78.

The statute has never been held to require a party to show payment of taxes before objecting to the proceedings, where the tax proceedings are not sufficient to show a prima facie title in the grantee in the tax deed. Spellman v. Curtenius, 12 Ill. 412; Wilson v. McKenna, 52 Id. 48.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was ejectment, by Susan Connelly, against Thomas Eagan, in the circuit court of Ford county, for the west half of the south-east quarter of section 25, in township 28 north, range 9 east, of the third principal meridian, in that county. Judgment was given for the plaintiff, and the case is brought here by the appeal of the defendant.

Plaintiff gave in evidence, upon the trial, a patent from the United States to Cosmore G. Bruce, a deed from Bruce and wife to Ell N. Keys, and a deed from Keys and wife to plaintiff, all embracing the land in controversy. Defendant objected to the reading of these deeds in evidence, upon the ground that the acknowledgments do not show that the grantors were personally known to the officer taking the acknowledgment. Both deeds were executed and acknowledged in the State of Ohio, and upon this objection being made, plaintiff offered in evidence a book, the title page whereof reads thus: “Statutes of Ohio--By authority of the General Assembly--In force August 1st, 1854-- Published in pursuance to the act of the General Assembly of April 18th, 1854.” And plaintiff then also offered in evidence chapter 34, page 309, thereof, relating to the acknowledgment, etc., of conveyances. Defendant objected to this evidence, but the court overruled the objection, and permitted the statute to be read in evidence; and the court also, after the reading of this evidence, permitted the deeds to be read in evidence. Exception was taken to this ruling, and it is now assigned for error. No question is made but that the deeds were acknowledged as required by the statute read in evidence, and it will therefore be unnecessary to compare the acknowledgments with the requirements of the statute. We think the evidence was properly admitted. Section 10, chapter 51, of the Revised Statutes of 1874, page 490, provides that “the printed statute books * * * of the several States * * * purporting to be printed under the authority of * * * said States, * * * shall be evidence in all courts and places in this State of the acts therein contained.” And it is provided by section 23, of chapter 30, of the Revised Statutes of 1874, page 277, that “all deeds, conveyances, and powers of attorney for the conveyance of lands lying in this State, which have been or may be acknowledged or proved * * * in conformity with the laws of any foreign State, * * * shall be deemed as good and valid in law as though acknowledged or proved in conformity with the existing laws of this State.” And section 22 provides that “any legal mode of proving that the same is executed in conformity with such foreign law may be resorted to in any court in which the question of such acknowledgment may arise.” The statute being proved, the certificates of acknowledgment show for themselves whether they conform to it, and nothing more is needed.

An objection is also made that the women joining in the acknowledgments are not properly shown to be the wives of the grantors. This is trivial. The deeds would pass the legal title though the wives did not join in their execution. The only object in having them join is that they may release their rights of dower, which is of no consequence whatever in this suit.

The defence interposed was a judgment and sale for taxes, and a deed thereunder, and plaintiff made certain objections thereto, to be hereafter noticed. Defendant, however, contends these objections can not be considered, because plaintiff did not show that all taxes due upon the land had been paid by her. This will not avail as against the objections here interposed. All persons may object to the want of a sufficient judgment, precept or deed. Spellman v. Curtenius, 12 Ill. 412; Wilson v. McKenna, 52 Id. 48.

The judgment relied upon by defendant was for the delinquent taxes for the year 1866. The record of the lands and town lots against which the judgment was rendered, and upon and by virtue of which the land in controversy was sold, was not signed or sealed by the county clerk, nor did it have any certificate of his attached thereto at the time of the sale; but on the 4th of April, 1883, nearly sixteen years after the sale, the county court made an order that James S. Frederick, who was county clerk at the time of the sale, be granted “leave to attach the proper form of the clerk's certificate authenticating the record,” etc., and the certificate was thereupon attached. The court, upon the trial, excluded the record so amended as evidence, and held no valid...