Joliet Stove Works v. Kiep

• Citation: 82 N.E. 875,230 Ill. 550
• Parties: JOLIET STOVE WORKS v. KIEP et al.
• Decision Date: 10 December 1907
• Court: Supreme Court of Illinois

230 Ill. 550

82 N.E. 875

JOLIET STOVE WORKS

v.KIEP et al.

Supreme Court of Illinois.

Oct 23, 1907.

Rehearing Denied Dec. 10, 1907.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Will County; Dorrance Dibell, Judge.

Action by John Kiep and others against the Joliet Stove Works. From a judgment for plaintiffs, defendant appeals. Affirmed.

C. W. Brown, for appellant.

Benjamin Olin and Morrill Sprague, for appellees.

HAND, C. J.

This is an action of assumpsit, commenced in the circuit court of Will county by the appellees against the appellant, to recover the amount of money bid by their assignor at a tax sale of certain real estate situated in said county belonging to the appellant, and subsequent taxes paid thereon by them, under the provision of sections 213 and 214 of [230 Ill. 552]the revenue act (Hurd's Rev. St. 1905, p. 1678, c. 120), on the ground that said tax sale was void by reason of the misdescription of the premises sold. The declaration consisted of the common counts, to which was filed the general issue. The plaintiffs also filed a bill of particulars, which showed they sought to recover of the defendant the amount paid at tax sale of the defendant's real estate on July 2, 1898, $455.91; interest thereon at 10 per cent., $370.13; taxes paid on said real estate May 23 or 24, 1899, $540.19; interest thereon at 10 per cent., $380.32; taxes paid on said real estate March 1, 1900, §655.20; interest thereon at 10 per cent., $410.75. A jury was waived, and the case was tried before the court; and the court held, in certain propositions of law submitted by the respective parties, that the plaintiffs were not entitled to recover the amount bid at the tax sale, but were entitled to recover the amounts of the subsequent taxes paid on said real estate by them and interest on said amounts at 10 per cent. per annum, and rendered judgment in favor of the plaintiffs for $1,986.46, which judgment has been affirmed by the Appellate Court for the Second District, and a further appeal has been prosecuted to this court.

It appears from the evidence that the defendant in 1897 was the owner of about four acres of land situated in the city of Joliet, upon which was located its plant; that in 1897, and for a number of years prior thereto, said real estate had been assessed for taxation as lot 6 of Assessor's subdivision of block 24, Bowen's addition to Joliet, Will county, Ill., and the taxes levied thereon prior to 1897 paid by the defendant; that the defendant failed and neglected to pay the taxes levied against said real estate under said description for the year 1897, and the said real estate, under the said description, was sold for the taxes of said year on July 2, 1898, for the sum of $455.91, to William O'Callaghan; that a tax certificate on said sale, under said description, was issued to said O'Callaghan, which certificate was assigned by said O'Callaghan on August 28, 1898, to the plaintiffs; that on May 24, 1899, the appellees paid the taxes on said real estate under said description, amounting to $540.19, and on March 1, 1900, they paid the taxes on said real estate under said description, amounting to $655.20; that, the premises not having been redeemed, on July 30, 1900, the same were conveyed by the county clerk of said county to the appellees under said tax sale, as lot 6 of Assessor's subdivision of block 24, Bowen's addition to Joliet, Will county, Ill., which deed was recorded in the office of the recorder of deeds in said county August 1, 1900. The appellees thereafter notified appellant they had a tax deed to said real estate. About two years thereafter appellees discovered there was no such lot as lot 6 of Assessor's subdivision of block 24, Bowen's addition to Joliet, Will county, Ill., and appellees thereupon caused the county clerk of Will county to make an entry on the tax sale record of said county, opposite the description, ‘Lot 6 of Assessor's subdivision of block 24, Bowen's addition to Joliet,’ as follows: ‘August 25, 1902. Tract sold in error. Void on account of uncertain description. William F. Hutchinson, Co. Clerk.’ Appellees thereupon executed a quitclaim deed of the premises to W. N. Moore, an officer of the appellant company, and left it with the county clerk, with written directions to deliver it to appellant on payment by it of the money paid by them for taxes on said premises, and on November 2, 1903, appellees executed another quitclaim deed for said premises to the appellant, and offered to deliver it to the appellant on payment to them of the amount of taxes paid by them on said real estate, and, the appellant having refused to repay to appellees the amount of money paid by them for taxes on said real estate, this suit was brought.

The first contention made by appellant is that there can be no recovery under the declaration filed in this case. That question was not raised by demurrer, motion in arrest of judgment, or otherwise, in the trial court, and it cannot, therefore, be raised in either the Appellate Court or in this court for the first time, and need not be considered in this opinion.

It is next contended the proof does not show that there was a misdescription of the real estate of appellant in the assessment for taxation for the year 1897. The real estate of appellant had been assessed under the description of lot 6 of Assessor's subdivision of block 24, Bowen's addition to Joliet, Will county, Ill., for a number of years. It was however, subsequent to said tax sale, discovered that there was no plat in existence in said county, of record, showing lot 6 of Assessor's subdivision of block 24, Bowen's addition to Joliet, Will county, Ill. The assessment was therefore void (People v. Chicago & Alton Railroad Co., 96 Ill. 369;People v. Eggers, 164 Ill. 515, 45 N. E. 1074;Vennum v. People, 188 Ill. 158, 58 N. E. 979) for want of such plat. In the Vennum Case, on page 160 of 188 Ill.,page 980 of 58 N. E., the court said: ‘In proceedings for taxation property must be described by reference to government surveys, or by metes and bounds, and, if it is divided into lots, then by a reference to authenticated plats. Where the property described in the application for judgment is designated as a certain lot in a certain subdivision, and there is no such lot as so described in the subdivision referred to, then it is clear that judgment ought to be refused, because a judgment for taxes cannot be rendered against property which has no existence. People v. Clifford, 166 Ill. 165, 46 N. E. 770;People v. Chicago & Alton Railroad Co., 96 Ill. 369.’ The question whether the real estate of the appellant was misdescribed in the...