Elston v. Kennicott

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: Elston v. Kennicott, 52 Ill. 272, 1869 WL 5425 (Ill. 1869)
• Decision Date: 30 September 1869
• Parties: DANIEL T. ELSTON et al.v.CAROLINE KENNICOTT et al.

52 Ill. 272

1869 WL 5425 (Ill.)

DANIEL T. ELSTON et al.

v.CAROLINE KENNICOTT et al.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

The opinion of the court contains a sufficient statement of the case.

Messrs. GOUDY & CHANDLER, for the appellants.

Messrs. GOODRICH, FARWELL & SMITH, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This case was before us at a previous term, and is reported in 46 Ill. 187. The judgment was reversed and the cause remanded, and another trial had; and from the judgment then rendered, this appeal is prosecuted. The parties, by agreement, submitted the case to the court without the intervention of a jury, and agreed that the cause should be tried upon the evidence heard on the former trial, together with such additional testimony as either party might choose to introduce on the trial. The title under which each party claims, appears in the case as reported, and is therefore not given here. We there discussed the question whether the appellees had color of title, and it was held to be sufficient, and we still so regard it. No question arises in regard to possession. The question which is presented is, whether there is proof of the payment of taxes so as to entitle appellees to the benefit of the statute.

The tax receipts used as evidence were the same on both trials; nor was any objection made to their admission on the trial; and it is urged that appellants can not object to the admissibility of the evidence for the first time in this court. Such is unquestionably the doctrine of this court, but the rule is equally as firmly settled that, after the evidence is admitted the other party may question its sufficiency to prove the issue. Any other rule would render the introduction of evidence almost, if not quite, impracticable. When the evidence is admitted, it is permitted in all courts to urge its insufficiency before the jury or judge trying the issues. And in this case, appellants are not objecting that the evidence was inadmissible, but are contending that, when admitted, it fails to prove seven consecutive years of payment of all taxes while appellee was in possession; and the question for our consideration is, whether the evidence sustains the finding of the court below.

The former decision of this court is urged as conclusive of the questions then presented, and of the case as it is disclosed by this record. So far as questions were then determined, that is true, but is not as to new questions and new facts. The very object of remanding a case for a new trial is to enable the parties to introduce any other and further legitimate evidence. It is the purpose of the law to administer justice and afford protection to parties in their legal rights, and not to prevent its attainment by mere technical rules. When a case has been determined in an appellate court, and remanded for further proceedings, and on a new trial further and material evidence is introduced, it becomes a new case in so far as to require the additional evidence to be considered in connection with the evidence previously before the court, and decided upon all the evidence then heard.

When this case was previously before the court, Mong testified that he had paid all the taxes on the west third of the lot every year during the time he owned it, being more than seven years. His evidence was clear and explicit. On the last trial he testified that he only remembered the amount of the several payments as shown by the receipts, nor does he know otherwise that the entire amount due was paid. But this testimony must be taken in connection with his former evidence, in which he says he called on the officer each year, gave him the number of the lot, and informed him that he desired to pay all the taxes due on the same, and paid all the officer said was due. His evidence on the last trial but slightly, if at all, changes the effect of his previously given testimony. It still fully proves the name of the person who paid the taxes, the lot on which they were paid, and that he paid each and every year, during the time. We are satisfied that this is sufficient. He remembers calling on the officer, telling him he desired to pay the taxes, giving his name, the description of the lot, and that he received the receipts. His evidence is still as explicit on these questions as it was before, and on those questions further discussion is deemed unnecessary.

This court held in the case of Hinchman v. Whetstone, 23 Ill. 185, that payment of taxes might be proved by parol, and receipts therefor might be explained or contradicted. The same conclusion was arrived at in the case of Rand v. Scofield, 43 Ill. 167, and the same conclusion was announced when this case was previously before this court, 46 Ill. 187. We regard this as the settled rule of this court, and decline its further discussion. While proof for that purpose may be introduced, it is important for the protection of all persons that, to have weight, it should be satisfactory and free from reasonable doubt. If it is loose, doubtful and unsatisfactory in its character it should receive but little weight. Those trying the issue would of course consider all the attendant circumstances, the remote or recent date of the payment, the intelligence of the witness, his memory, interest, fairness, and in short all that may disparage or support his testimony.

It is urged that receipt No. 1 for city taxes bearing date on the 7th day of November, 1845, is twelve and one-half cents less than the sum extended on the collector's warrant against the west one-third of the lot. After a careful examination of the record, we fail to find any portion of the collector's warrant in the bill of exceptions. But if it did appear, we are not prepared to hold that under the evidence in the case it could matter. Mong swears that he paid all the taxes that the officers severally claimed to be due, and that he designed to pay all, and supposed he had. When a party thus calls on the collector and offers to pay all of the taxes assessed on a tract of land, and the officer gives him a receipt in which he says the full amount has been paid to him, and receives the money, the presumption is strong that the full amount was paid and that the officer had made a mistake in the sum stated in the receipt, rather than in the amount received. We must presume the officer in such a case endeavors to get all, and when the tax payer endeavors to pay it, we may reasonable infer that the united efforts of the two would generally be successful. At any rate it is evidence from which a jury or a court may reasonably infer that all the taxes standing on the collector's warrant against the lot were paid.

The receipt No. 2, for State and county taxes for 1845, together with Mong's evidence, proves their payment, on the 1st of December, 1845. The receipt describes the lot as 30 feet on Madison street, by 189 feet deep, and as a part of lot 3, block 95, school section addition. The receipt shows that he paid on the proper quantity, in the proper lot, and although the sum is not specified in the body of the receipt, yet each kind...