Gage v. Busse
| Decision Date | 31 October 1880 |
| Citation | 7 Bradw. 433,7 Ill.App. 433 |
| Parties | HENRY H. GAGEv.CHRISTIAN C. BUSSE ET AL. |
| Court | United States Appellate Court of Illinois |
ERROR to the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding. Opinion filed November 8, 1880.
Mr. A. N. GAGE, for plaintiff in error; that county courts are courts of general jurisdiction in the matter of the sale of lands for delinquent taxes, cited Constitution, Art. VI, § 18; Graceland Cemetery v. The People, 92 Ill. 619.
Although a judgment for taxes may be defeated in a collateral action by proof of certain facts, yet where no attempt is made to prove those facts, the statute does not apply: Chestnut v. Marsh, 12 Ill. 173.
A judgment, though erroneous, is valid and binding until reversed or set aside by some appropriate remedy: Mayo v. Ah Loy, 32 Cal. 479; Porter v. Purdy, 29 N. Y. 106; People v. Brislin, 80 Ill. 423; C. & N. W. R. R. v. The People, 83 Ill. 467; Andrews v. The People, 84 Ill. 28; Graceland Cemetery v. The People, 92 Ill. 619.
Title acquired under a judicial sale cannot be questioned collaterally except for fraud in which the purchaser was a participant: Griffith v. Bogart, 18 How. 158.
This is a judgment in rem against the property: Rev. Stat. Chap. 120, § 191; Pidgeon v. The People, 36 Ill. 249; Chestnut v. Marsh, 12 Ill. 173; Spellman v. Curtenius, 12 Ill. 409; Olcott v. The People, 5 Gilm. 481; Brown v. Joliet, 22 Ill. 123; The People v. Nichols, 49 Ill. 517; St. John v. The City of East St. Louis, 50 Ill. 92; Atkins v. Hinman, 2 Gilm. 437.
And being in rem, it is binding on all the world: Starkie on Evidence, § 320; Wells on Res Adjudicata, 504; Cransdon v. Leonard, 4 Cranch. 434; Golston v. Hoyt, 13 Johns. 561; McCahill v. Insurance Co. 26 N. J. Eq. 531; Monroe v. Douglass, 4 Sandf. Ch. 134; Bradstreet v. Neptune Ins. Co. 3 Sumner, 600.
Judgments cannot be collaterally assailed: Young v. Thompson, 14 Ill. 380; Hobson v. Ewan, 62 Ill. 146; Goudy v. Hall, 36 Ill. 313; Young v. Lorain, 11 Ill. 625; Conover v. Musgrave, 68 Ill. 58; Osgood v. Blackmore, 59 Ill. 261; Prescott v. Chicago, 60 Ill. 121; Feaster v. Fleming, 56 Ill. 457; Thompson v. Morris, 57 Ill. 333; Rogers v. Higgins, 57 Ill. 244; Kelly v. Donlin, 70 Ill. 378; Chiniquy v. The People, 78 Ill. 570.
Objection that portions of the tax were unconstitutional should have been urged in the court below: Karnes v. The People, 73 Ill. 274.
The records of a court import absolute verity and evidence to prove want of jurisdiction will not be received if the records affirmatively assert jurisdiction: Zepp v. Hager, 70 Ill. 223; The People v. Gray, 72 Ill. 343; Mulford v. Stalzenback, 46 Ill. 303.
The valuation by the assessor for purposes of taxation is conclusive and cannot be assailed, except for fraud or want of jurisdiction: Spencer v. The People, 68 Ill. 510; Republic Life Ins. Co. v. Pollak, 75 Ill. 292; The People v. Big Muddy Iron Co. 89 Ill. 116.
Defendants failing to show a good title to the premises, their bill cannot be sustained: 1 Daniell's Ch. Pr. 314; Rev. Stat. 1874, Chap. 22, § 50; Harding v. Jones, § 86 Ill. 13; Emery v. Cochran, 82 Ill. 65; Wing v. Sherrer, 77 Ill. 200.
Messrs. MATTOCKS & MASON, for defendants in error; that a part of the city taxes were illegal, cited Law v. The People, 87 Ill. 385.
Generally as to what will make a tax sale invalid: Cooley on Taxation, 344; Blackwell on Tax Titles, 160; McLaughlin v. Thompson, 55 Ill. 249; Elwell v. Shaw, 1 Greenleaf, 339; Drew v. Davis, 10 Vt. 506; Stetson v. Camden, 13 Mass. 272; Kemper v. McClellan, 19 Ohio, 308; Lacy v. Davis, 4 Mich. 140; McQuilkin v. Doe, 8 Blackf. 581; Noble v. Indianapolis, 16 Ind. 506; Dogan v. Griffin, 51 Miss. 782; Pierce v. Schutt, 20 Wis. 423; Treadwell v. Patterson, 51 Cal. 637; Bucknell v. Story, 36 Cal. 67; Hardenberg v. Kidd, 10 Cal. 402; Geekie v. Kirby Carpenter Co. 11 Chicago Legal News, 400.
This was a bill in equity, brought by Christian C. Busse and Edwin Sturtevant, praying that three certificates of sale for the taxes of 1875, of certain lots in the city of Chicago, of which they claim to be seized in fee, be declared void and ordered to be surrendered up and cancelled, and that the county clerk of Cook county be enjoined from executing to Henry H. Gage, the holder of said certificates, a tax-deed thereon. The cause was heard in the court below on bill, answer, replication and proofs, and a decree rendered in favor of the complainants, in accordance with the prayer of the bill.
The complainant's averments, showing the invalidity of the sale, are to the effect that a considerable portion of the tax levied by the city of Chicago for the year 1875 was illegal; that in the appropriation ordinance and in the ordinance making the levy of taxes for that year, there were included certain illegal items particularly specified in the bill, amounting in all to the sum of $392,000, and that the tax levy containing such illegal items was certified to the county clerk of Cook county, and by him extended, in common with the state, county, school and other taxes upon the property in question. These averments were in no way admitted by the answer, and the burden was on the complainants to sustain them by proof.
The only evidence offered in support of these averments consisted of a transcript of the proceedings and judgment of the county court in the matter of the application of the county treasurer for judgment for the delinquent taxes in said county for the year 1875, and the judgment and opinion of the Supreme Court in the case of Law v. The People ex rel., etc., as reported in the eighty-seventh volume of the Illinois Reports, at page 385. These documents were all received in evidence against the objection of the defendant.
We are unable to perceive how this evidence can be held to sustain the case made by the bill. The judgment of the county court does not find that any of the illegal items complained of were in fact included in the city tax. So far as the complainants' property is concerned, judgment seems to have been entered without any appearance or objection on their part. Divers objections, it is true, were filed by other tax-payers and overruled by the court, but it does not appear that the court, in adjudicating upon such objections, ascertained or determined the several items of which the city tax was composed, nor does the judgment order contain any recital on that subject. Whatever may have been the objections urged in the county court, or the evidence introduced in support of such objections, we know of no principle upon which such objections and evidence can avail the complainants in this case as proof of their averments here.
Nor are we able to perceive any legal principle upon which the statements of fact made by the Supreme Court in their opinion, in the case of Law...
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