Thompson v. Mclaughlin

• Decision Date: 30 September 1872
• Citation: Thompson v. Mclaughlin, 66 Ill. 407, 1872 WL 8591 (Ill. 1872)
• Parties: LEWIS W. THOMPSONv.WILLIAM MCLAUGHLIN.
• Court: Illinois Supreme Court

66 Ill. 407

1872 WL 8591 (Ill.)

LEWIS W. THOMPSON

v.WILLIAM MCLAUGHLIN.

Supreme Court of Illinois.

September Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. MILLER, FROST & LEWIS, for the appellant.

Messrs. GOUDY & CHANDLER, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of ejectment, brought by Thompson against McLaughlin.

The plaintiff claimed the land in controversy and endeavored to recover, first, by virtue of a tax title, and second, by virtue of a title established under the first section of the limitation law of 1839.

When this case was before this court at a former term, it was held that this tax title was void, for the reason that the judgment under which the sale for taxes was had included a county tax, levied at the June term, 1845, of the county commissioners' court, instead of at the March term of the court, as required by the 8th section of the revenue law, approved March 3, 1845.

It was at that time regarded by the counsel on both sides, and so assumed by the court without examination, that the aforesaid act of March 3, 1845, was in force at the time of the June session in 1845 of the county commissioners' court.

It has subsequently been discovered by counsel, and is now brought to the notice of the court, that there was a misapprehension in that respect, and that the said revenue act of March 3, 1845, did not go into effect until September 10, 1845; consequently, the county tax was rightly levied at the June term, 1845, as it was required to be by the revenue law of February 26, 1839, which was the one then in force.

Hence, this tax title is not invalid for the reason assigned by this court in its former decision in McLaughlin v. Thompson, 55 Ill. 249.

Other reasons are now urged against the validity of the tax title, among which is the one, that it does not appear that the collector filed with the clerk of the circuit court, with his report, a copy of the advertisement together with a certificate of the due publication thereof, as required by section 56 of the revenue act. That section (Scates' Comp. 997,) requires that the collector shall obtain a copy of the advertisement, which the act requires to be published, together with a certificate of the due publication thereof, from the printer or publisher of the newspaper in which the same shall have been published, and shall file the same with the clerk of the circuit court at the term at which the application for judgment and an order of sale is made, together with the report.

The following section, 57, requires the clerk, upon the filing of the report and such certificate of publication, to record the same in a book to be kept for that purpose.

This court decided, in Dukes v. Rowley, 24 Ill. 210, that such recording of the collector's report and certificate of publication was a positive requirement, and essential to the validity of a tax title.

For the same reason, in order to make out a valid tax title, a copy of the advertisement and a certificate of its due publication must have been filed as required by the statute.

The collector's report here was introduced in evidence, but it does not appear to be accompanied with either a copy of the advertisement or a certificate of its publication. As portions of the judgment and precept offered in evidence, there do appear a copy of the advertisement and a certificate of publication. But it fails to appear from the record that they were filed at the time required by the statute, or even that they were filed at all.

For this reason we must hold that the instructions against the validity of the tax title, which are complained of, were correct.

It is objected that the court below erred in admitting evidence to show that the defendant occupied under a patent title, in order to bring himself within the requirement of section 73 of the revenue law of 1845, which is as follows: “But no person shall be permitted to question the title acquired by a collector's deed without first showing that he or she, or the person under whom he or she claims title, had title to the land at the time of the sale.” Scates' ...