People v. Thomas Biggins.

• Decision Date: 11 November 1880
• Parties: THE PEOPLE OF THE STATE OF ILLINOISv.THOMAS BIGGINS.
• Court: Illinois Supreme Court

96 Ill. 481

1880 WL 10136 (Ill.)

THE PEOPLE OF THE STATE OF ILLINOIS

v.THOMAS BIGGINS.

Supreme Court of Illinois.

Filed at Mt. Vernon Nov. 11, 1880.

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. C. L. COOK, and Messrs. WISE & DAVIS, for the appellants:

By law, the taxes due on real estate are a lien on the same from the first day of May in the year in which they are levied, until the same are paid. Rev. Stat. 1877, Revenue chap., sec. 253, p. 855.

The remedy provided by the statute, for the collection of taxes, is not exclusive. The State may bring a suit at law for the same, or use the remedy it sees fit; being sovereign, the statute has no application to it. Dollar Savings Bank v. United States, 19 Wall. 227; City of Dubuque v. Ill. Central R. R. Co. 39 Ia. 56; Ryan v. Gallatin Co. 14 Ill. 83; Dunlap v. Gallatin Co. 15 Id. 7; Mayor v. Howard,6 Har. & Johns. 499; Clemens v. Mayor, 16 Md. 208; City of Oakland v. Whipple, 39 Cal. 113; Mayor v. McKee, 2 Yerg. 187; The People v. Seymour, 16 Cal. 334; State v. Poulleren, 16 Id. 514; Portland Dry Docks and Ins. Co. v. Trustees of Portland, 12 B. Mon. 77.

Mr. D. GILLESPIE, and Mr. C. HAPPY, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by the People of the State of Illinois, in the circuit court of Madison county, against Thomas Biggins, to enforce, on foreclosure, the lien given by law on certain land, in Madison county, for the taxes due from 1871 to 1878, both years inclusive, amounting to the sum of $9000. The defendant interposed a demurrer to the bill, which the court sustained, and entered a decree dismissing the bill. The complainant appealed to the Appellate Court, where the decision of the circuit court was affirmed, and to reverse this decision, an appeal was prayed and allowed to this court.

But a single question arises upon the record, and that is, whether a court of equity has jurisdiction of a proceeding by bill, for the collection of taxes delinquent on real estate. Sec. 253 of the Revenue law, Rev. Stat. 1874, p. 899, declares: “The taxes assessed upon real property shall be a lien thereon, from and including the first day of May in the year in which they are levied, until the same are paid.” Under this section of the statute, it is clear that taxes assessed on real estate become a lien on and from the first day of May in each year in which the assessment is made. If, after that date, the owner should sell the land, and convey with covenants against incumbrances or tax liens, and fails to pay the taxes, he would be liable in an action on his covenants, as held in Almy v. Hunt, 48 Ill. 45. The section provides a specified time in each year when the taxes of that year shall become a lien, although the land may not, at that time, have been assessed, and although the tax levy is never made until the following fall.

It is also plain that it was contemplated, by this section, that the land, from the first day of May in each year, should be held bound for the taxes assessed thereon, until said taxes should be paid, in the same manner that land is held liable for a judgment at law which may be rendered against the owner of the land in an action brought against him; but while this is true, is there any logical or legal ground for holding that a lien of this character can be enforced by bill in chancery in the same manner that a lien can be enforced which is created by a real estate mortgage?

This is not an equitable lien, nor a lien created by contract or usage. There are certain liens which exist only in equity, such as vendors' and vendees' liens on sales of real estate, liens by deposit of deeds, partnership liens, and liens pendente lite. Parsons on Contracts, vol. 3, p. 227.

The lien provided by the section, supra, was not created by contract, nor does it fall within the class denominated equitable liens, but it is a lien imposed and created by statute. A judgment lien and a lien provided for the protection of the mechanic, are also of the same character, and may be regarded as statutory liens.

Those liens created by statute, are enforced in the manner prescribed by the law which gave them an existence. Our statute provides that a mechanic, who furnishes labor or material in the erection of a building under a contract, express or implied, with the owner of the land upon which the building is erected, shall have a lien on the land and building for the amount due for such labor or materials.

The same statute which creates the lien, provides the various steps that shall be taken to enforce that lien, and the lien can only be enforced by a strict compliance with the requirements of the statute.

Section 1, chapter 77 of our Rev. Stat. 1874, provides that a judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained, situated in the county where the court is held, from the time the same is rendered for a period of seven years. Other sections of the statute provide the manner in which this lien may be enforced against the real estate, and we are aware of no other mode under which the lien can be made effectual than by following the steps required to be taken by the statute.

Suppose a person, after he had obtained a judgment which had become a lien on real estate, for some reason should neglect to levy upon and sell the real estate of the defendant in the mode required by the statute, but, on the other hand, should file a bill in a court of equity to foreclose the lien which the statute had given him, it would not, we apprehend, be seriously argued that a bill of that character could be maintained, and, upon the same principle, the lien given for taxes can not be foreclosed in equity, as the various steps to be taken to enforce a lien for taxes, in order to collect the same, are as fully and as clearly defined by the Revenue law as the mode is pointed out by the statute under which a judgment lien may be enforced and the judgment collected.

In Miami Exporting Company Bank v. Turpin, 3 Ohio, 514, where a judgment had been rendered in favor of the bank, which became a lien on certain real estate, and afterwards the defendant died and the land was sold by an administrator, on a bill filed by the bank to enforce the lien of the judgment on the lands, it was held that a court of equity had no jurisdiction, the existence of the lien and the method of enforcing it being purely legal matters.

It is there said: “The lien claimed is not an equitable lien, founded upon trust and originating in contract. It is a legal lien. Whether it exists or not is purely a legal question. If it exists, the law that gives it life is competent to effect its objects. Chancery, therefore, can not interfere.” See, also, Douglass v. Houston, 6 Ohio, 156.

What has been said in regard to the lien of a judgment, which is created by statute, may also be said in regard to the lien for taxes, which, too, is the creature of the statute. Where the owner of real estate fails or neglects to pay the taxes levied on a tract of land, under section 188 of the Revenue law it is made the duty of the county collector at a specified time to make return of the delinquent list to the county clerk, and under section 191 a judgment may be rendered against the land, and by the terms of section 201 the land may be sold for the taxes due thereon. In case, however, the land should not be sold, for the want of bidders, and should be forfeited to the State, there is still another provision for the collection of the amount due, under section 230. This declares that the county board may at any time institute suit, in an action of debt, in the name of the people, in any court of competent jurisdiction, for the amount due on forfeited property. Here is an adequate and complete plan, devised by the legislature for the purpose of enforcing the lien created by section 253 of the Revenue law, and in the absence of any intimation or expression in any part of the Revenue law conferring jurisdiction on a court of equity, we perceive no ground upon which it can be held that a court of chancery has jurisdiction. We have been referred to no case, nor are we aware of any, where a bill has been maintained to foreclose a lien for taxes. On the other hand, in our State at least, the jurisdiction has been denied.

In the case of Railroad Co. v. Carroll County, 41 Iowa, where a cross-petition was filed by the defendant to enforce the collection of taxes against the complainant, the relief was denied, and the court said: “Without entering into a discussion of the question whether a court of equity has power in any case, except where authorized by statute, to enforce the collection of taxes against the property of the tax-payer, it is sufficient to say that the statutory remedy for the collection of the taxes in question in this case is plain, speedy and adequate, and there exists no reason to invoke the equity powers of the court to displace the legal remedy required.” What was said in the case cited may with great propriety be said here.

It has, however, been suggested that the State is not bound to follow the statutory mode provided for the collection of the revenue, but owing to its sovereignty may resort to any method it may desire. The officers of the State, in the collection of revenue, are as much bound to observe the law and proceed in the mode pointed out by the statute as an individual is required to observe the law in the enforcement of any right. The revenue can only be collected in the manner pointed out by the statute, and whether it is being collected by the State officers, a county, or incorporated town, can make no difference. Each and all must proceed in the manner provided by the law.

It is also insisted, as a reason why a resort should be had to a court of...