Wallahan v. Ingersoll

• Decision Date: 15 May 1886
• Citation: 7 N.E. 519,117 Ill. 123
• Parties: WALLAHAN and others v. INGERSOLL.
• Court: Illinois Supreme Court

117 Ill. 123

7 N.E. 519

WALLAHAN and others

v.INGERSOLL.

Supreme Court of Illinois.

May 15, 1886.

Appeal from Woodford.

Hopkins & Hammond, for appellants.

C. H. Chitty, for appellee.

MULKEY, C. J.

On the fourth of November, 1884, Eva Ingersoll commenced an action of ejectment in the Woodford circuit court, against Elizabeth Wallahan and others, for the recovery of E. 1/2 N. E. 1/4 section 15, and the N. E. 1/4 S. E. 1/4 section 29, township 27 N., range 2 W. The cause was subsequently tried upon the merits, resulting in a judgment for the plaintiff, to reverse which this appeal is brought. That the plaintiff established a prima facie right of recovery in the first instance is not seriously controverted. The questions, therefore, to be determined, relate to the sufficiency of the defense to overcome the prima facie case made by the plaintiff. The defendants sought to establish on the trial an outstanding title in the state, by escheat, to the whole of the property, and a valid tax title as to the 80-acre tract in Mrs. Wallahan, founded upon a tax sale in 1881, for the taxes of 1880 and prior years.

Not stopping to remark upon the inconsistency of these defenses, the latter may be disposed of in a few words. The affidavit upon which the tax deed was issued, is wholly insufficient. It does not state the particular facts relied on as showing a compliance with the requirements of sections 216 and 217 of the revenue act, as amended by the act of 1879. Indeed, there is no attempt to do so. Such being the case, there was no authority in the county clerk to issue the tax deed, and it is consequently void. Price v. England, 109 Ill. 394. Having reached this conclusion, it is unnecessary to notice the other objections urged against the tax proceeding.

The evidence relied on to establish title in the state is anything but satisfactory. It consists mainly of certain papers found in the office of the clerk of the circuit court of Woodford county, and though none of them, except perhaps one, bear the file-mark of the clerk, yet, all the circumstances considered, we think it sufficiently appears that they constitute the files of an escheat proceeding, commenced, in the name of the people, in 1849, for the purpose of establishing title in the state, by escheat, to the land in controversy. Before calling attention to the statutory provisions on the subject with a view of determining whether they were complied with in that particular case, it is perhaps proper to call attention to the general common-law principles relating to the subject of escheats. When the owner of real property dies intestate without heirs capable of inheriting it, the title thereof devolves, by operation of law, upon the state. Yet, when thus acquired, the state cannot make its title available without first establishing it in the manner prescribed by law. This is done by the institution of a purchase proceeding in the proper court, in the name of the people, for the purpose of proving and establishing by a judicial determination title in the state. The facts essential to the existence of the state's title are specifically set forth in the statute, and must be clearly proven on the hearing. The proceeding is in the nature of an inquest of office, and the record of it is the only competent evidence by which a title by escheat may be established. Denv. O'Hanlon, 21 N. J. Law, 582; Crane v. Reeder, 21 Mich. 28;Com. v. Hite, 6 Leigh, 588;People v. Cutting, 3 Johns. 1.

The proceeding, the record of which is relied on as showing title in this case, was had under the act of 1845 entitled ‘Escheats,’ (see Rev. St. 1845, p. 225,) which is in most respects like the present act; the material difference being that estates now escheat to the county in which the property, or the greater portion of it, is situated, instead of to the state. By the second section of the act of 1845 it is made the duty of the attorney general, or the circuit attorney of the proper county, when he is informed, or has reason to believe, that any real estate within his district has escheated to the state, to file an information in the circuit court of the county in which such estate is situated, ‘setting forth a description of the estate, the name of the person last lawfully seized, the names of the terre-tenants, and persons claiming such estate, if known, and the facts and circumstances in consequence of which such estate is claimed to have escheated, and alleging that by reason thereof the state of Illinois hath right by law to such estate.’ Upon the filing of such information it is made the duty of the court to award and issue a scire facias against such person or persons, bodies politic or corporate, as shall be alleged in such information to hold, possess, or claim such estate, requiring them to appear and show cause why such estate should not be vested in the state, etc. It is also made the duty of the court to make an order setting forth briefly the contents of the information, and requiring all persons interested in the estate to appear and show cause, if any they have, at the next term of the court, why the same should not be vested in the state. This order is required to be published for six weeks successively in some newspaper in or nearest to the county in which such proceeding is had; the last insertion to be at least two weeks before the...