The County of Piatt v. Goodell

• Decision Date: 26 November 1880
• Citation: 1880 WL 10167,97 Ill. 84
• Parties: THE COUNTY OF PIATTv.LEVI GOODELL.
• Court: Illinois Supreme Court

97 Ill. 84

1880 WL 10167 (Ill.)

THE COUNTY OF PIATT

v.LEVI GOODELL.

Supreme Court of Illinois.

Filed at Springfield Nov. 26, 1880.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Piatt county.

Mr. S. R. REED, Mr. A. EMERSON, and Mr. C. A. TATMAN, for the plaintiff in error:

Section 8 of the Swamp Land act (1 Purple's Stat. 700) provides that the Auditor shall make a list of the swamp lands of the county and forward the same to the county clerk of the proper county, which list shall have the force and effect of patents issued for school lands.

The land in controversy being swamp land and included in the Anditor's list, was exempt from taxation so long as it remained unsold by the county. Sec. 3 of the Revenue act of 1853; 2 Purple's Stat. 921.

Whether the Statute of Limitations will run against a county or other municipal corporation, we cite the following authorities: Logan County v. City of Lincoln, 81 Ill. 156, Dillon on Mun. Corp. vol. 2, secs. 532, 533.

These lands, by the Swamp Land act, are vested in the county for public use, and are held in trust for the purposes declared in the act.

Messrs. LODGE & HUSTON, for the defendant in error:

The statute makes a tax deed prima facie evidence that the real estate conveyed was subject to taxation at the time it was assessed, etc. Rev. Stat. 1877, p. 851, sec. 224. This statute clearly relieved Goodell from the necessity of showing that the land was subject to taxation.

The acts of the county officers in listing this land for taxation, returning it as delinquent, taking judgment and selling it, are positive acts which induced Goodell's grantor to expend his money in purchasing the same, and the constant receipt of taxes by the county officers for over ten years makes it inequitable to allow the county to stultify itself by retracting what its officers have done, so that the county is estopped to deny that the land was subject to taxation. Logan County v. City of Lincoln, 81 Ill. 156.

There is a clear and well recognized distinction taken between lands held by a county or city in trust for the public use, or dedicated for a particular purpose, and those purchased by such bodies for their own exclusive use. As to the first, the Statute of Limitations does not run, while as to the latter it does. City of Alton v. Illinois Transportation Co. 12 Ill. 58; Logan County v. City of Lincoln, 81 Id. 156; 2 Dillon on Munic. Corp. secs. 532, 533.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This cause is brought here upon the following agreement:

It is agreed between the plaintiff and defendant in the above entitled cause, that on the trial of this cause in said court the plaintiff introduced in evidence the certified list of the Auditor of the State of the swamp lands of Piatt county, showing title in said county to the west half of the southeast quarter of the north-east quarter of section No. eight (8,) township No. twenty (20) north, range No. six (6,) east third principal meridian, in said county of Piatt, and then rested its case.

That thereupon the defendant introduced a judgment of the probate court of said county against said lands for non-payment of taxes, then offered in evidence a tax deed to L. J. Bond for said lands and a deed from Bond to Goodell, and tax receipts for eight successive years previous to the commencement of suit, and showed possession for the same time.

The plaintiff objected to the introduction of all the foregoing because there was no evidence offered showing that said land had been sold by plaintiff under the Swamp Land act, and no certificate from the Auditor of State directing the county clerk to enter the same for taxation.

It is agreed that all the proceedings through which the tax title was acquired were regular on their face.

The court found the issues for the defendant, and rendered judgment against the plaintiff and in favor of the defendant.

The questions submitted to this court are:

1st. Can a valid tax title be obtained as against a county for swamp land without showing that the land had been sold by the county under the Swamp Land act?

2d. Does the Statute of Limitations run against a county in favor of a party holding color of title for swamp land, acquired in good faith, and showing payment of taxes and possession for eight years before suit?

Bond, through whom the defendant claims, was, at the time of his purchase, chargeable with notice, under our recording laws, of the county's title to the premises in question, and he is conclusively presumed to have known that so long as they belonged to the county they were not subject to taxation, and could not legally be sold for taxes. It follows, therefore, that he acquired no title to the premises by virtue of his tax deed.

But the tax deed was color of title, under the Limitation act of 1839. And since it is well settled, by numerous decisions of this court, that constructive notice of a better title of record is not, within the meaning of that act, evidence of bad faith, and the actual good faith of the transaction is not at all questioned in the agreement upon which this case is submitted, it follows that the tax deed was color of title made in good faith, and so also was the deed from Bond to the defendant. The real and vital question in this case would then seem to be, can the title of lands belonging to a county, which are not held for some public use or trust, and which the county may at pleasure sell and convey without any breach of duty, be defeated by possession and payment of taxes under color of title made in good faith, for a period of seven years, in the same manner as if they belonged to an individual?

The solution of this question necessarily leads to a consideration of the more general inquiry, whether municipal corporations--using the term in its most extended sense--like individuals, are subject to general statutes of limitation.

Nullum tempus occurrit regi is one of the ancient maxims of the common law, and is the natural offshoot of the maxim, Rex non potest peccare. Inasmuch as by the latter maxim the king was regarded as incapable of doing a wrong, it necessarily followed that negligence or laches could not be attributed to him, and it was held therefore, at an early day, that the king was not subject to statutes of limitation, except when expressly named, and such has been the law from that period up to the present time.

The same doctrine has generally been recognized by the courts of this country, both national and State, as applicable to the federal and State governments. And the same general doctrine, with certain limitations, has by the same courts, with more or less uniformity, been extended to other municipal and quasi municipal corporations, such as cities, towns, counties, etc. It is clear, from the authorities, that these latter corporations have not the same immunity from the operation of limitation laws and the effects of unreasonable delays in the enforcement of their rights, or the performance of their duties, as the federal and State governments have.

In City of Alton v. Illinois Transportation Company, 12 Ill. 38, which was an action of ejectment, brought by the city to recover a strip of land constituting a part of the public landing, it was objected, among other things, that the action was barred by the Limitation act of 1835, requiring certain real actions to be brought within seven years after possession taken of the premises sought to be recovered. But the objection did...