Smith v. Toman

• Decision Date: 15 April 1938
• Docket Number: No. 24489.,24489.
• Citation: 368 Ill. 414,14 N.E.2d 478
• Parties: SMITH v. TOMAN, Sheriff, et al.
• Court: Illinois Supreme Court

368 Ill. 414

14 N.E.2d 478

SMITH

v.TOMAN, Sheriff, et al.

No. 24489.

Supreme Court of Illinois.

April 15, 1938.

Suit by Rose G. Smith against John Toman, Sheriff of Cook County, and others, to enjoin the sale of plaintiff's realty under execution on a judgment for the People of the State of Illinois against the David J. Molloy Company, plaintiff's vendor. From a decree enjoining the sale, defendants appeal.

Affirmed.Appeal from Circuit Court, Cook County; Thomas J. Lynch, judge.

Thomas J. Courtney, State's Atty., of Chicago (Jacob Shamberg and Neal J. McAuliffe, both of Chicago, of counsel), for appellants.

Frederick A. Brown, of Chicago (G. Gale Roberson and Daniel F. Kemp, both of Chicago, of counsel), for appellee.

FARTHING, Chief Justice.

In the trial of this case it was stipulated that Rose G. Smith, appellee, purchased certain real estate in Cook county on January 21, 1937, in good faith and for value, from the David J. Molloy Company. A judgment for $3,200 and costs had been obtained by the People of the State of Illinois against that company on August 8, 1932, in the same court, but no execution was issued on that judgment until March 7, 1937. This suit was filed to enjoin the sheriff from selling appellee's property by virtue of that execution, and it was stipulated that unless enjoined, such sale would be made. The circuit court of Cook county rendered a decree in favor of the appellee enjoining the appellants from making such sale. The judgment was for personal property tax against the above-named corporation, and the appeal was to this court. The question involved is whether the judgment for $3,200 was a lien on appellee's real estate on January 21, 1937.

Section 1 of the Judgments Act, Ill.Rev.Stat.1937, c. 77, § 1, p. 1897, provides, in part: ‘A judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained, situated within the county for which the court is held, from the time the same is rendered or revived, for the period of seven years, and no longer. * * * When execution is not issued on a judgment within one year from the time the same becomes a lien, it shall thereafter cease to be a lien, but execution may issue upon such judgment at any time within said seven years, and shall become a lien on such real estate from the time it shall be delivered to the sheriff or other proper officer to be executed.’

At common law the sovereign had priority over all subjects for the payment out of the debtor's property of all debts owing to it, and this state having adopted the common law, the sovereign's right to priority in payment has become an attribute of the State. People v. Farmers' State Bank, 335 Ill. 617, 167 N.E. 804, 65 A.L.R. 1327;Dunlap v. Gallatin County, 15 Ill. 7;People v. Oregon State Savings Bank, 357 Ill. 545, 192 N.E. 580.

Appellants insist that the language quoted above from the Judgments Act shows two separate provisions with reference to a judgment lien: (1) That a lien is created by the creditor obtaining the judgment; and (2) that it is lost by his failure to have execution issued within a year. From this premise, they argue that the language defeating the lien by nonaction is language of limitation, a condition subsequent, and does not operate against the state; that the state cannot be foreclosed of any right because of laches; that the doctrine of estoppel does not apply to the sovereign; and that neither malfeasance, misfeasance, nor nonfeasance can be imputed to the sovereign because of the action of its officers and servants, citing 2 Freeman on Judgments, 5th Ed., § 1007; 1 Black on Judgments, 2d Ed., § 462; Commonwealth v. Baldwin, 1 Watts, Pa., 54, 26 Am.Dec. 33;People v. Woods, 354 Ill. 224, 188 N.E. 369; People v. Union Elevated Railroad Co., 269 Ill. 212, 110 N.E. 1;People v. Illinois Women's Athletic Club, 360 Ill. 577, 196 N.E. 881;People v. Brown, 67 Ill. 435.

A judgment did not create a lien upon the real estate of the debtor at common law. 2 Freeman on Judgments, 5th Ed., §§ 916, 917; Am. & Eng. Ency. of Law, 768, note 12. A judgment lien is purely a creature of the statute. Sapp v. Wightman, 103 Ill. 150;Noe v. Moutray, 170 Ill. 169, 48 N.E. 709;Cooke v. Avery, 147 U.S. 375, 13 S.Ct. 340, 37 L.Ed. 209. The crown's right to priority against its debtor's property attached at common law only upon seizure under, or enforcement of, the crown's writ of extent, which was a summary writ in the nature of an execution. 25 Corpus Juris 228; 8 Ency. of Pl. & Pr. 784; Ex parte Marshall, 1 Atkyns' Rep. 261. If the property of the crown debtor was transferred to another before the crown enforced its prerogative right by the writ, the crown lost its right against the property. Giles v. Grover, 9 Bing. 128; Chosen Freeholders of Middlesex County v. State Bank, 29 N.J.Eq. 268;North Carolina Corp. Comm. v. Citizens' Bank & Trust Co., 193 N.C. 513, 137 S.E. 587,51 A.L.R. 1355.

Appellants contend that the statutory provision that the lien should cease at the end of one year if no execution was issued, is not binding upon the state. They say that some officer might have caused an execution to be issued within the year, thus extending the lien of the judgment for the full seven years, and that the neglect or omission of a public officer cannot work an estoppel against the state. This is generally true. However, under our statutes, Ill.Rev.Stat.1937, c. 120, §§ 171, 215, 239, 240, unpaid personal property taxes are not a lien upon any of the real estate of the person failing to pay such taxes, but if the officials charged with the collection of such taxes fail to collect them, a statutory mode of making such uncollected personal property taxes a lien on the taxpayer's real estate is provided. Nevertheless, we have repeatedly held that if such officials neglect or omit to follow the procedure outlined by statute to charge the taxpayer's real estate with such uncollected personal property tax, the lien does not attach (People v. Gibson, 335 Ill. 198, 167 N.E. 32;Mt. Carmel Light & Water Co. v. People, 166 Ill. 199, 46 N.E. 722;Howard v. Nichols, 360 Ill. 628, 196 N.E. 808) and a purchaser of land, even with notice of unpaid personal property taxes existing against the grantor, takes free of any lien for such taxes unless the land previously has been particularly charged in the method prescribed by statute. Belleville Nail Co. v. People, 98 Ill. 399;Parsons v. East St. Louis Gas Light & Coke Co., 108 Ill. 380;Kansas City Life Ins. Co. v. Gehant, 362 Ill. 58, 198 N.E. 703. In Kinney v. Knoebel, 51 Ill. 112, the state had previously recovered a judgment in the circuit court of Sangamon county against a person owning land in another county. Under the statute a judgment is a lien only upon land in the county where it is obtained, unless a transcript is filed in another county where the debtor owns land. The officer or attorney for the state might have obtained and filed such transcript in the county where the judgment debtor owned real estate but neglected or omitted to do so. We held the judgment obtained in Sangamon county was not a lien on land of the judgment debtor in another county, notwithstanding the state was the judgment...