Williams v. Isaac Underhill.

• Decision Date: 31 January 1871
• Citation: 58 Ill. 137,1871 WL 7898
• Parties: PETER WILLIAMS et al.v.ISAAC UNDERHILL.
• Court: Illinois Supreme Court

58 Ill. 137

1871 WL 7898 (Ill.)

PETER WILLIAMS et al.

v.ISAAC UNDERHILL.

Supreme Court of Illinois.

January Term, 1871.

APPEAL from the Circuit Court of Mason county; the Hon. CHARLES TURNER, Judge, presiding.

Messrs. LACEY & WALLACE, for the appellants.

Mr. O. H. WRIGHT, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, brought in the Mason circuit court, by appellee against appellants. The title relied upon for a recovery in the court below, were tax titles derived from different sales of the land, and upon which deeds were executed. The first objection urged, is, that there were produced no valid judgments or precepts upon which to base the tax deeds.

A party relying on a tax deed as title, must produce a valid judgment against the land for the taxes and a precept, under which the sale was made, before the deed can be used as evidence, to authorize and sustain a recovery. Hinman v. Pope, 1 Gilm. 131; Dukes v. Rowley, 24 Ill. 210; Baily v. Doolittle, ib. 577; Holbrook v. Dickinson, 46 ib. 285; Wilding v. Horner, 50 Ill. 50. Nor has the act of 1861, which requires the defendant to tender the redemption money before he can interpose a defense to a tax deed, changed the rule. Under that law, as before, the plaintiff must show that there was authority to sell the land.

In all cases of the sale of lands under a judgment or decree, the party offering the deed must show the officer had authority to make the sale and deed, and this is done by producing the judgment or decree, and an execution directing the sale, if under a judgment, before a prima facie case is made. Even under the law of 1827, which provides that the auditor's tax deed shall vest in the purchaser a perfect title, unless the land should be redeemed according to law, or the former owner shall show that the taxes for which the land had been sold, had been paid or the land was not legally subject to taxation, the authority had to be shown under which the auditor acted in making the sale. Garrett v. Wiggins, 1 Scam. 337; Hill v. Leonard, 4 Scam. 141; Wiley v. Bean, 1 Gilm. 302. The language of the act of 1827, apparently, is as broad and comprehensive as the act of 1861. But in summary proceedings against property of this character, they always require to be strict, and a court never indulges liberal intendments to uphold them. There is usually no comparison between the price paid and the value of the property thus sold, and hence the party claiming must conform strictly to the law.

The judgment and precept are referred to in the deed as the authority upon which the sale is made, and the deed proves no title until it appears the judgment and precept thus referred to, warranted the action of the officer. We can not believe that the law intended to render a tax deed evidence, although the officer may have made it without any judgment or precept, as in that case there would, or could be, no sale from which a redemption could be made, nor could the amount of the redemption money be deposited with the clerk, as there would be no judgment to refer to for the purpose of ascertaining the amount to tender to the person claiming under the deed, or to be paid to the clerk. If ...