Garrett v. Doe

• Decision Date: 30 June 1837
• Citation: 30 Am.Dec. 653,1837 WL 2354,2 Ill. 335,1 Scam. 335
• Parties: MOSES GARRETT, plaintiff in error,v.JOHN DOE, ex dem. SAMUEL WIGGINS, defendant in error.
• Court: Illinois Supreme Court

1 Scam. 335

2 Ill. 335

1837 WL 2354 (Ill.)

30 Am.Dec. 653

MOSES GARRETT, plaintiff in error,

v.JOHN DOE, ex dem. SAMUEL WIGGINS, defendant in error.

Supreme Court of Illinois.

June Term, 1837.

THIS cause was heard in the Circuit Court of Franklin county, at the April term, 1834, before the Hon. Thomas C. Browne and a jury, and a verdict rendered against the defendant in the Court below, the present plaintiff in error.

WALTER B. SCATES, for the plaintiff in error, cited the following authorities:

Statute of 1827 (R. L. of 1827) §§ 1, 2, 3, 4, 7, 8, 9, 10, 12, 13, 23, 24, 25, 28; 6 Wheat. 119; 2 Peters' Cond. R. 151, 154, 171-2; 3 Peters' Cond. R. 28, 271, 275; 4 Cranch, 403; 2 Am. Dig. 430, 431, 508; 3 Am. Dig. 488-9; Runnington's Eject. 182; 1 Johns. Dig. 84-5, §§ 59, 60.

H. EDDY and W. J. GATEWOOD, for the defendant in error.

WILSON, Chief Justice, delivered the opinion of the Court:

This was an action of ejectment brought by Wiggins against Garrett, to recover the possession of a tract of land which was sold to him by the Auditor of Public Accounts, as the property of Garrett for the non-payment of taxes. On the trial, Wiggins adduced in support of his title a deed from the auditor, executed in the form prescribed by law, and upon this evidence of title submitted his cause. The defendant's counsel then moved the Court for several instructions as to the law applicable to the case, and the insufficiency of the plaintiff's evidence of title; all of which the Court refused, and upon motion of the plaintiff's counsel, gave instructions directly opposite to those asked for by the defendant, as follows:

1st. That the statute in force at the time of the execution of the auditor's deed, and not that which was in force at the time of sale, was the one applicable to the case.

2d. That the auditor's deed is evidence of the regularity and legality of the sale, and in the absence of proof of any other title, the jury must find for the plaintiff, Wiggins.

These instructions were excepted to by the defendant on the trial, and are now assigned for error. Some other errors were also assigned, which it is considered unnecessary to notice. In order to understand the effect of the first branch of the instructions given by the Court, it is necessary to recur to the order of time in which the different acts connected with the plaintiff's title were performed, and also to the different legislative provisions upon the subject.

The sale to Wiggins was made on the 17th day of January, 1829, but the deed was not executed till 1831, after the revenue law of 1829, (R. L. 523; Gale's Stat. 569,) which had repealed that of 1827, had gone into operation. This last statute is essentially different from the preceding one, upon the same subject, and it is contended, dispenses with proof, on the part of the purchaser at an auditor's sale, of the pre-requisites of the statute. But we are not called upon in this case to give a construction to that statute, as I am clearly of opinion that it is not applicable to this case. Without the clearly expressed intention of the legislature, courts will not give to a law a retrospective operation, even where they might do so without a violation of the paramount law of the Constitution; but no such intention can be collected from the law of 1829. Its language and objects are prospective. It relates only to contracts and proceedings under its provisions, and can not by a fair construction be so extended, as to interfere with, or impair, prior contracts, rights, or obligations. The fact of the deeds not having been executed till after the statute of 1829 went into operation, has no influence upon the character of the transaction. The statute under which the sale was made gave to the purchaser, at his option, the privilege of demanding from the auditor a deed immediately, or of taking a certificate of purchase, and waiting for his deed till the expiration of two years. In either case the form of the deed was...