Hinman v. Pope
| Decision Date | 31 December 1844 |
| Citation | 6 Ill. 131,1844 WL 4063,1 Gilman 131 |
| Parties | WILLIAM A. HINMANv.REUBEN POPE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
EJECTMENT in the Brown circuit court, by the plaintiff in error against the defendant in error, to recover possession of the N. E. 22, 1 S. 4 W. of the fourth principal meridian. The cause was tried at the September term 1844, before the Hon. JESSE B. THOMAS and a jury. Verdict for the defendant.
O. H. BROWNING and N. BUSHNELL, E. D. BAKER, for the plaintiff in error.
A. WILLIAMS, and W. A. MINSHALL, for the defendant in error: The judgment and precept, under the law of 1839, must be produced before the deed of the sheriff can be read in evidence. Laws of 1838-9, pp. 18, 19, §§ 43, 44; see, also, Ronkendorf v. Taylor's Lessees, 4 Peters 361, 362. On the taxing power, see 561 and 562 of same volume; for the construction of such powers, Lessees of Hughes v. Horrell, 2 Ohio 231, 232, 233; Lessees of Holt's heirs v. Hemphill's heirs, 3 do. 234.
For distinction between tax and patent titles, with respect to pre-requisites, Steed's Executors v. Course, 2 Peters' Cond. R. 151; Boardman v. The Lessees of Reed, 6 Peters, 328, 342; and for the construction of powers of the officers in such cases, Jackson v. Morse, 18 Johns. 443.
In the exercise of a naked power, not coupled with an interest, every pre-requisite of that power should precede it. Williams v. Peyton's Lessees, 4 Wheat. 77; 4 Peter's Cond. R. 395.
In Tennessee, under a law, in many respects like our act of 1839, for the payment of taxes, it has been held essential to the validity of the sale, and of the deed made thereon, that every fact necessary to give the court jurisdiction, should appear on the face of the record. McClung v. Ross, 4 Peter's Cond. R. 603, 604.
For construction of this power, see Thatcher v. Powell's Lessees, 6 Wheat. 119; 6 Peter's Cond. R. 28.
The recitals in a sheriff's, or collector's deed for lands sold for taxes are not even prima facie evidence of the compliance with the law. Jackson v. Shepard, 7 Cowen 88; Jackson v. Esty, 7 Wend. 148.
But the defendant in error relies, for maintaining the judgment below, on a sound construction of the various provisions of the law of 1839, with respect to the judgment and precept.
This was an action of ejectment, commenced in the Brown circuit court, by the plaintiff in error against the defendant in error, to recover the possession of the north east quarter of section twenty-two (22), in township one (1) south, and range four (4) west.
On the trial of the cause, the plaintiff proved that the defendant was in possession of the land at the institution of the suit, and then offered to read in evidence to the jury to prove title in himself, a sheriff's deed for the land in question, dated the 2d day of May, 1843. The deed was in the form prescribed by the statute, and acknowledged according to law, and reciting a sale of said land under a judgment of the circuit court of Brown county in favor of the state of Illinois against the tract of land above described, for the amount of the taxes, interest, and costs, assessed upon said tract of land for the year 1839, and also reciting a precept, issued from said court, authorizing such sale. To the reading of this deed the defendant objected, and the objection was sustained by the court. The plaintiff then read in evidence, without objection, a judgment of the said circuit court, at its April term, 1841, against said land for the taxes due thereon for the year 1839, and again offered to read the said deed in evidence, and it was again objected to and rejected by the court. The plaintiff then offered to read in evidence a precept of which the following is a copy, to wit:
“List of lands and other real estate situated in the county of Brown and state of Illinois, on which taxes remain due and unpaid for the years herein set forth.
+-----------------------------------------------------------------------------+
¦Names of the¦Present¦Year for ¦ ¦ ¦ ¦ ¦ ¦
¦Patentees, ¦owners.¦which tax is ¦Description.¦Valuation.¦Tax.¦Cost.¦County.¦
¦ ¦ ¦due. ¦ ¦ ¦ ¦ ¦ ¦
+------------+-------+-------------+------------+----------+----+-----+-------¦
¦Gideon ¦ ¦ ¦160 N. E. ¦ ¦ ¦ ¦ ¦
¦Brunk. ¦ ¦1839 ¦22, 1 S. 4 ¦$1120 ¦5.60¦16 ¦Brown. ¦
¦ ¦ ¦ ¦W. ¦ ¦ ¦ ¦ ¦
+------------+-------+-------------+------------+----------+----+-----+-------¦
¦Andrew ¦ ¦ ¦160 N. E. ¦ ¦ ¦ ¦ ¦
¦Gerald. ¦ ¦1840 ¦30, 1. N. 2 ¦$640 ¦4.48¦16 ¦Do. ¦
¦ ¦ ¦ ¦W. ¦ ¦ ¦ ¦ ¦
+-----------------------------------------------------------------------------+
The foregoing is a correct list of taxable property upon which taxes remain unpaid for the years 1839 and '40, in Brown county, state of Illinois.
You are hereby commanded to sell so much of the foregoing tracts of land, as shall be sufficient to satisfy the tax, interest, and costs on each lot set opposite said lot in the foregoing list, and make due returns of your doings according to law.
In testimony whereof, I have hereunto set my hand, and affixed the seal of the Brown circuit court, at Mt. Sterling, this 20th day of April, A. D. 1841.
+-------------------------------+
¦[L.S.]¦JAMES BROCKMAN, Clerk.” ¦
+-------------------------------+
On which precept were the following endorsements, to wit:
“This writ came to hand on the 20th day of April, 1841, 4 o'clock P. M.
IRAM NYE, S. B. C.”
“Executed as I am commanded by sale of the within described tracts and parts of tracts of land for the amount of taxes, interest, and costs on the same for the years 1839 and 1840, as will more fully appear by reference to the land sale register in the clerk's office of the county commissioners' court of Brown county, state of Illinois.
IRAM NYE, S. B. C., Ills.
April 29th, 1841.”
To the reading of this precept in evidence, the defendant, by his counsel, objected, and the court sustained the objection and refused to permit it to be read to the jury in evidence. The plaintiff then again offered to read in evidence to the jury the sheriff's deed aforesaid, which, being objected to by defendant's counsel, was again rejected by the court, and the plaintiff took an exception to these various rulings of the court.
There being no other evidence offered, the jury found a verdict for the defendant, on which the court rendered judgment for him. The case is now brought to this court for revision, and the several opinions of the circuit court rejecting the testimony offered by the plaintiff are assigned for error.
This court is called upon by the assignment of errors to construe the revenue law passed February 26, 1839, touching the mode of proving title to land purchased for the non-payment of taxes under that law. The questions presented for consideration are.
First. Whether the sheriff's deed executed in the form prescribed by that law was admissible in evidence, without preliminary proof of a judgment and execution, or a precept in the nature of an execution.
Second. Whether, if an execution or precept is necessary, the paper offered was sufficient.
By the act entitled “an act concerning the public revenue,” passed February 26, 1839, it is provided that when any person owning lands shall fail to pay the taxes assessed thereon, and the collector shall be unable to find personal property whereon to levy, sufficient to pay the taxes, the collector shall make report thereof at the first term of the circuit court of the proper county, in each year for the preceding year, and upon having published notice, according to the directions of said act, of such delinquency, and of his intention to apply to the circuit court for a judgment to sell said lands on a day to be mentioned in said notice, the circuit court is authorized to take cognizance of said application. By the 29th section of said act, it is declared that “it shall be the duty of said court, upon calling the common law docket of said term, if any defence be offered by any of the owners of said lands so reported, or by any person having a claim or interest therein, to hear and determine the same in a summary way without pleadings, and if no defence be made the said court shall pronounce judgment against the said lands, and shall thereupon direct the clerk of said court to make and issue an order for the sale of the same, which shall be in the following form, to wit:
+----------------------------------------------------------+
¦“State of Illinois,¦)¦ ¦ ¦
+-------------------+-+---+--------------------------------¦
¦ ¦)¦ss.¦ ¦
+-------------------+-+---+--------------------------------¦
¦_______ County. ¦)¦ ¦Whereas A. B., collector of said¦
+----------------------------------------------------------+
county, returned to the circuit court of said county, on the day of 18 , the following tracts and parts of tracts of land,...
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United States v. Meyer
...judgment, the acts of the sheriff are unwarranted and his deed vests no title in the purchaser. This Court decided in the case of Hinman v. Pope, 1 Gilman 131, that these principles are strictly applicable to the sale of land under the provisions of the `Act concerning the Public Revenue', ......
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... ... This court, in several cases, have so construed these laws. Hinman v. Pope, 1 Gilman 131; Bestor v. Powell, 2 do. 119; Atkins v. Hinman, Ibid 437.8. There can be no difference between the two kinds of sale and the ... ...