Roby v. the City of Chicago.

• Decision Date: 30 September 1872
• Parties: EDWARD ROBYv.THE CITY OF CHICAGO.
• Court: Illinois Supreme Court

64 Ill. 447

1872 WL 8349 (Ill.)

EDWARD ROBY

v.THE CITY OF CHICAGO.

Supreme Court of Illinois.

September Term, 1872.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Mr. EDWARD ROBY, pro se.

Mr. I. N. STILES and Mr. JOHN LEWIS, for the appellee.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of ejectment, brought by the appellant, against the city of Chicago. The plaintiff claimed under a deed made to him by the city, upon a sale of the premises in controversy for non-payment of a special assessment. The city, as appears from the argument of appellant, now occupies the property as a street, having bought the title of the former owners since the sale under the assessment. All the records pertaining to the sale by the city, as also the tax deed made by the city to appellant, were destroyed by the fire of October 9, 1871. On the trial, the plaintiff made secondary proof of the judgment, precept, deed and notice of sale, which was received subject to exception, a jury having been waived. After all this proof was offered, the court held it insufficient to show title in the plaintiff, under the eighteenth section of the act passed April 9, 1872, entitled “An act to remedy the evils consequent upon the destruction of any public records by fire or otherwise.” The plaintiff brings up the record, and insists that the section of the act applicable to this case is a violation of the constitution, because, under the pretense of changing a rule of evidence, it impairs contracts and divests rights of property. In the view we have taken of this case, it is not necessary to attempt to define the limits of legislative power in regard to rules of evidence, as we are of opinion the section in question simply declares that to be the law which the courts would probably have held to be so, independently of this legislation.

Apart from this act, a tax or special assessment deed, like that executed by the city to the plaintiff, would have been evidence of the regularity of all proceedings pertaining to the sale anterior to the judgment and precept. The adverse party, however, would have been at liberty to prove any irregularity in these proceedings affecting the validity of the sale, that is to say, any departure, by the officers of the city, from the material requirements of the law.

The judgment, precept and tax deed, made out a prima facie title for the plaintiff, raising, in his favor, a presumption of regularity in all other proceedings, which presumption his opponent was obliged to overcome; but antecedent irregularities could only be shown by the records, and while these were in existence, it was not a matter of very great moment where the onus probandi lay. When, however, these records were burnt, if the claimant under a tax deed could, by parol proof of the judgment, precept and deed, raise all the presumptions in his favor which would attach to the originals, all the titles claimed under tax sales would be virtually made paramount titles. The judgment, precept and deed, would always be susceptible of proof, as the party claiming would be able to testify to the deed, and the officers would prove the judgment and precept, not in exact words and figures, but by testimony of an unsatisfactory, but still admissible, character. On the other hand, the adverse party would have no means of showing such irregularities in the proceedings as would vitiate the tax sale. They could be ascertained only by an examination of the records, and these are gone. The owner of property, which had been sold for non-payment of taxes,...