Riverside Co. of Shawneetown, Illinois v. Townsend

• Decision Date: 10 November 1886
• Citation: 120 Ill. 9,9 N.E. 65
• Parties: RIVERSIDE CO. OF SHAWNEETOWN, ILL., v. TOWNSEND and another.
• Court: Illinois Supreme Court

120 Ill. 9

9 N.E. 65

RIVERSIDE CO. OF SHAWNEETOWN, ILL.,

v.TOWNSEND and another.

Supreme Court of Illinois.

November 10, 1886.

Appeal from circuit court, Gallatin county.

E. B. Green and Carl Roedel, for appellants.

R. R. W. Townshend and T. M. Eckley, for appellees.

MAGRUDER, J.

This is an action of ejectment, which is now before us for the second time. It is reported as Riverside co. v. Howell, 113 Ill. 256. Since the former decision, it has been redocketed in the circuit court of Gallatin county, and the appellees here were, on their own motion, substituted as defendants in the court below, in the place of William A. Howell, their tenant.

After our opinion was filed in the case at Mt. Vernon, on March 24, 1885, section 224 of the ‘Act concerning revenue,’ approved March 30, 1872, in force July 1, 1872, as amended by an act approved May 30, 1879, in force July 1, 1879, was amended by an act of the legislature, which added the following proviso at the end of the section: ‘Provided, that any judgment or decree of court setting aside any tax deed procured under this act shall provide that the claimant shall pay to the party holding such tax deed all taxes and legal costs, together with all penalties, as provided by law, as it shall appear the holder of such deed or his assignors shall have properly paid, or be entitled to in procuring such deed, before such claimant shall have the benefits of such judgment or decree.’ Laws 1885, p. 234. This proviso went into force July 7, 1885.

Upon a second trial of the suit before the circuit court without a jury, the court found the issues for appellant, and rendered a judgment in accordance with the terms of the proviso here quoted. The judgment, after finding that appellant owns the fee of a part of the premises, and an estate for the life of another in the balance thereof, and after further finding that the tax deed set up by appellees is void, and should be set aside, and that appellees paid a certain amount of money to get their deed, and for subsequent taxes, directs that appellant recover the premises; and that, ‘upon the payment by the plaintiff to the defendants of the sum of $2,485.23, a writ of restitution is hereby ordered to issue hereon, the issuance of the same being stayed until such sum be paid as aforesaid.’

The errors assigned by the appellant question the validity of so much of the judgment of the court below as formally sets aside the tax deed, and makes the payment of the taxes, etc., a condition precedent to the issuance of the writ of possession. It is manifest that the judgments or decrees referred to in the foregoing proviso are judgments or decrees rendered in proceedings which have for their object the setting aside of tax deeds procured under the revenue act. An ejectment suit is never brought for such a purpose. It is not the proper office of a judgment in ejectment to set aside a tax deed. By adopting the proviso in question, the legislature merely intended to provide that wherever, in any proceeding properly instituted for that purpose, a tax deed should be set aside, the judgment or decree directing it to be done should require the claimant to pay to the holder of the deed whatever such holder had disbursed for taxes and costs, and whatever the law awarded him as penalties. It was not the design of this amendment to change the action of ejectment into a chancery proceeding, nor to confer any new or enlarged jurisdiction upon courts of law. No other tribunals were to be vested with the power of setting aside tax deeds than those which had been in the habit of granting such relief before the passage of the new law.

This proviso can have no application to the deed, which we have already passed upon in this case. It will not be presumed that the legislature intended to enact such a retrospective statute as would affect and change vested rights. Such enactments ‘are very generally considered in this country as founded on unconstitutional principles, and consequently inoperative and void.’ 1 Kent. Comm. 455.

By the decision of this court, announced in an opinion filed before the above proviso was adopted, the tax deed in question was held to be invalid, and to constitute no legal bar to the recovery of appellant in its action of ejectment. After that decision was rendered, appellant had the right to proceed with the further prosecution of its suit, under the protection of our ruling that the tax deed of appellees should not stand in the way of its recovery. The judgment of the circuit court virtually nullifies the ruling, and holds, in effect, that the deed shall be a bar to the suit, and shall stand in the way of a recovery, unless appellant pays to appellees the sum of $2,485.23. The deed was declared by that decision to be unconditionally illegal. The legislature has no power to say that a vested right, which is absolute and unconditional, shall only be exercised upon certain conditions imposed by itself; nor do we think that they designed, by the passage of the enactment now under consideration, to assume the exercise of any such power.

Cross-errors have been assigned by the appellees which attack the right of appellant to a judgment for the property, even upon its payment of the amount required of it by the circuit court. The cross-errors are based upon the refusal of the trial court to hold, as law, certain propositions submitted to it by appellees, to the effect that the validity of the tax deed has become res adjudicata, and cannot be questioned by appellant. The suits in which it is alleged that the matters here involved have been already adjudicated are two actions of forcible entry and detainer,-one brought before a justice of the peace, and the other in the circuit court.

The action before the justice was brought in June, 1881, by the appellees against one Charles Kampan, who is alleged to have been a tenant of appellant. June 16, 1881, judgment was rendered in favor of the appellees, and possession delivered to them on June 21, 1881. The proceedings in the action before the justice cannot be set up as a bar to the present suit, for the reason that appellant was not a party to that action. Kampan was the defendant therein, and made no defense, suffering judgment to be recovered against himself. There is no evidence that appellant ever had any notice of the suit against Kampan, and its rights here cannot be barred by the judgment in that suit, no matter what questions may have been adjudicated thereby.

The second action of forcible entry and detainer was begun of August 23, 1881, in the circuit court of Gallatin county, by appellant against William A. Howell and John E. Hall, who are shown by the evidence to have been tenants of the appellees. The case was tried before a jury, who returned a verdict of ‘not guilty,’ and in September, 1881, judgment was rendered against appellant. This judgment is pleaded here as a bar to the present action of ejectment. Appellees insist that the validity of their tax deed was, or might have been, adjudicated upon and determined in the action of forcible entry and detainer in the circuit court, and that appellant is estopped by the judgment of that court therein from assailing the validity of the tax title in this case. But a judgment in an action of forcible entry and detainer cannot be pleaded as a bar to an action of ejectment, for the reason that the questions involved in the two proceedings are different. The object of the action of ejectment is to try the title to property, while in an action of forcible entry and detainer ‘the immediate right of possession is all that is involved, and the title cannot be inquired into for any purpose.’ Kepley v. Luke, 106 Ill. 395;McGuirk v. Burry, 93 Ill. 118;Smith v. Hoag, 45 Ill. 250;McCartney v. McMullen, 38 Ill. 237;Shoudy v. School Directors, 32 Ill. 290.

Counsel for appellees quote the sixth clause of the second section of the forcible entry and detainer act, (Starr & C. St. c. 57, page 1175,) which provides that ‘the person entitled to the possession of lands or tenements may be restored thereto * * * when lands or tenements have been * * * sold under the judgment * * * of any court in this state, * * * and the party to such judgment, * * * after the expiration of the time of redemption, when redemption is allowed by law, refused or neglects to surrender possession thereof, after demand in writing by the person entitled thereto, or his agent;’ and refer to certain decisions of this court which hold that, in order to recover under the clause so quoted, the plaintiff must show a valid judgment, execution, and sheriff's deed. Johnson v. Baker, 38 Ill. 98;Johnson v. Bantock, Id. 113; Kratz v. Buck, 111 Ill. 40. We do not deem it necessary to decide whether thir clause was designed to include judgments for taxes against land or not.

It is to be noted that the action of forcible entry and detainer, which is relied upon as a bar, was not gegun by appellees against appellant; and hence appellees did not, as plaintiff, set up in the complaint their tax judgment, sale, and deed, and allege the refusal of appellant to surrender possession. The action was brought by appellant against appellees. Appellees were already in possession of the property. If it were allowable for a party having the possession to defend it in an action of forcible entry and detainer by showing the judgment and sale contemplated by the sixth clause of the act, there is no evidence that the tax judgment relied on by appellees was proven by them, in their defense against the action brought by appellant. The complaint, as set out in the record, makes no other allegation then the general ont that Howell and Hall unlawfully withhold that possession thereof from the said Riverside Company. ‘The record contains no proof whatever that the question of the validity of the tax judgment was brought before the court which rendered the judgment in the forcible entry and detainer suit,...