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    The following opinion of Judge Drummond, of the United States Circuit and District Courts for the District of Illinois, was delivered at the December term, 1850, of those Courts. The merit of the opinion was such, that at the request of a large number of the members of the bar, he prepared it for publication, and at the request of the same parties, it is published.
    THE UNITED STATES v. E. C. DUNCAN, et al.

    Circuit Court of United States for Illinois
    December Term,1850.
    The judgments at law and decrees in chancery of the Circuit Court of the United Stares for the District of Illinois constitute a lien throughout the State, on the real estate of the party against "whom they are rend, red. This doctrine treated as the law of the Court, until the Supreme Court shall establish a different rule.
    A person, who, at a judicial sale, purchases a tract of land, as the property of ihe party against whom the judgment is obtained, and pays the purchase money to the pla ntiff cannot, as a general thing, call on him for repay./ eat.

    A sale of real estate of D., had taken place under a decree of this Court, O. became the purchaser of a piece of 1 aid, and paid the purchase money to the plaintiffs, but discovering that D. had no title to the land, made application to the Court to have the purchase money i eimbursed out of moneys of the plaintiff’s in Court; held, in the absence of fraud and unfair dealing, that this could not be done, but that being a judicial sale, 0. must take the consequences of a defect or failure of title; and that the remedy was in equity ag.dnsi D. or his legal representa!ives.
    If one partner withdraws funds from the partnership, and pays the taxes on his private estate, the creditors of the partnership do riot, in geaer.il, thereby acquire a lien on the land. Tne estate of the partner is still his own private property, and, in case of his death, passes to his heirs or devisees subject to that debt as to others; and if his executors make a similar appropriation of the par.nership funds the rule is the same.
    Where it was alleged that A. and B were partners, and after A’s death, his executors app -opriated partnership property to the payment of taxes on his estate, and in expenses of administration, he being, at the time of his death, insolvent and indebted to the United Statesiu judgment and otherwise, which judgments were a lien on the real estate of A., the lien of the United States and their priority of payment were not thereby affected, but they could enforce tlicir judgments notwithstanding the acts of the executors.
    When the partnership property is not sufficient to pay the debts of the fl.m, the priority of the United States does not reach the undivided interest of one of the partners in the partnership effects, if he is indebted to the. United States, but when it has become his separate, individual property, the rule would be different. The true test is, whether the property belongs to the partnership or the individual.
    The creditors of a partnership applied to the State Court by bill, to declare the partnership, and decree the payment of the partnership debt, out of assets in the hands of the administrator of one of the pai tners who bad died insolvent, indebted to the United States. 'The administrator denied the partnership and took an objection based on the debts of the Uniicd States and their priority. The State Oouit decreed in accordance wi h the prayer of the bill. The' U. S. were not parties, and did not appear in the State Court. Held that the proceedings in the State Court did nut impair the tights of the United States, and that they were not bound by th m, but that notwithstanding the decree in the State Court, the priority of the government attached, and that whenever the procet ds of any real estate, or any personal estate, cam • into the hands of the administrator, he became a trustee for the United Slates, and they must first be paid.
    The acts of Congress, giving the United States a priority of payment, supe sede all State laws upon the subject of the distribution of those estates that come within their provisions. The law makes no exception in favor of a particular class of creditors, and the priority of the Unded States does not yield to the claims of any creditors, however high may be the dignity of their debts.
    In June, 1841, the United States recovered judgments in the Circuit Court of the United States against D. Subsequently, in 1841 and 1S42, other creditors obtained judgments in a State Couit against him. These last judgments were liens only on the real estate of D. situate in the county where the judgments were recovered. In 1846, the U. S. obtained a decree in the Circuit Court of the United Stues, directing ail of D.’s real property in the State, to be sold to pay an indebtedness to the United b tales, independent of the judgments of 1841. D. died in 1844, his whole property not being sufficient to pay the debts due the government. Under the decree of 1846, various sales took place of real estate, out of the County in which the other creditoi s had' their judgment, and there was a fund in Court arising from these sales, sufficient to pay the judgment! of the other creditors. The United Stateshaving sued out executions on the judgments of 1841, and levied them on lands situate in the coun'y whete the other creditors held their judgments, these creditors made app icatiin to this Court to compel the United S.-ates logo upon lands out of that county, to satisfy their judgments, or for the proceeds of the land sold out of that county. He'd, that however it might be in the case of private individuals, the United btates, having an older lien made perfect by a levy, wet e entitled to retain it and sell the property to satisfy the judgments of 1841, and that the other creditors had no claim upon the proceeds in Court.
    It ia a rule well recognized and understood, that when a party has a lien for a debt in.two funds, and another patty has a lien on one of the funds only, a court cf equity will oblige the party who has the double funds, to resort, in the first instance, for payment, to that fund upon which the other party has no lien. But this is never done when it trenches on the rights or operates to the prejudice of the party entitled to the double fund.
    The case of Schuyler v. Teller, 9 Paige, 113, examined and distinguished from this.
    But this rule does not affect, under the circumstances of this case, the priority of the United States, neither is that priority affected by the rule settled in Hew York, that lands consisting of different parcels, subject to a general incumbrance, are in equity to be charged in the inverse order of the alienation of the several parcels.
    It has been, uniformly held in all the cases, that the priority cf the United States does not disturb any specific lien, nor the perfected li n for a judgment, that is, it does not supersede a nmrtgagc on land, nor a judgment made perfect by the issue of an execution and a levy on real estate. But in the case of a general lien it is not so clear.
    The laws of die United States, giving a priority to the government, are of general application in the cases therein stated, and if a debtor ia to be excepted out of the general rule, it devolves upon the party alleging the exception, to show it.

      Opinion, Delivered December 27th, 1850.
    In the year 1835, Joseph Duncan, whose representatives are the defendants in this case, became one of the sureties of William Linn, receiver of public moneys- at Vandaba, in this State The principal having failed to comply with the duties imposed on him by law, the sureties became liable on the bond given to the United States.
    At the June term, 1841, of this Court, the United States recovered three several judgments at law, against the sureties. Duncan among others, for the aggregate sum of $29,191 05. At the time these judgments were obtained, none of the sureties, except Duucan, had any available property, and Linn, the principal, was insolvent.. On the 22d of December, 1843, the United States realized on these judgments, the sum of $23,532 65.
    In January,'1844, Joseph Duncan died, disposing, by will, of his real and personal estate, but making no provision, other than the usual one' for the payment of his debts, for the amount due the United States. At the time of his death, he was seized of a great many tracts of land lying in different counties of this State and in Morgan county, his place of residence.
    The judgments of 1841, in this Court, not covering the defalcation of Linn, the plaintiffs instituted suit at law, to the December term of this Court, 1844, against William Thomas, as administrator, &c , of Joseph Duncan, the executors having resigned or ceased to act; and, at that term, recovered judgment against the administrator, de bonis testatoris, for the sum of $48,151 61.
    In February, 1846, the United States filed a bill in this Court-setting forth most of the facts detailed above, and asking for a discovery of the title papers and estate of Duncan; insisting upon the priority of the plaintiffs; and praying for an account of the money due the United States; of the personal estate of Duncan; and of the value, rents and profits of the real estate; and that, if the personal estate was not sufficient, the real estate might be sold to pay the debt due the plaintiffs. To this bill, the widow) heirs, executors, devisees, die., of Duncan were made parties. During the progress of the cause, the value of the widow’s dower was agreed upon and amicably' settled, and she relinquished. Answers were put in by the defendants, and at the June term, 1846, a decree was rendered in favor of the United States, for the sum of $49,156 15, (that being all that was due, except what had not been collected under the judgments of 1841,) and ordering the real estate of Duncan to be sold, and the proceeds to be paid to the United States, “ first paying prior liens, if any.”

      Under this decree, various sales of real estate out of Morgan county have taken place, under the direction of a commissioner, from which very considerable sums have been realized, part of which have been paid over to the United States, but there remains the sum of $4,052 00, subject to the order of the Court.
    Personal property, to the amount of $300 00, was sold under the judgment of 1844.
    There were two judgments recovered against Duncan in his life time, in the Circuit Court of Morgan county, of this State, one by McConnel et al, for $333 76, in November, 1841, and the other by Matthews for $497 35, in March, 1842. On the 10th of November, 1845, Doremus, Suydam & Nixon, filed a bill in the same Court against William Thomas, administrator, &c., of Duncan’s estate, alleging that certain personal property which the executors of Duncan had sold, and the proceeds of which, amounting to $960 60, it seems they had applied to the payment of taxes on real estate and expenses of administration, belonged to a firm of which one James M. Duncan and Joseph Duncan, in his life time, were partners, and that the plaintiffs were creditors of that firm, and claiming that they (Doremus, Suydam & Nixon) should be repaid the sum so used by the executors, and that they should be substituted in their place; insisting it was a fávored claim. James M. Duncan, also one of the sureties of Linn, was party to this bill, but he-was insolvent. The administrator, in his answer, denied the partnership, and referred to the claim of the United States, and their priority, and to the proceedings in this Court, which he set forth at length, but the Circuit Court of Morgan county, by a decree rendered on the 17th of November, 1847, found that the partnership did exist, as stated in the bill; that at the death of Duncan, the goods and-chattels referred to, and the proceeds of which had gone into the hands of the executors, were liable for the partnership debts, wherever traced, and ordered that the plaintiffs should be. paid out of the estate of Duncan. To Doremus & Nixon $766 48; to William A. Ransom & Co., $194 12. The latter had been made parties, and Suydam had died pending the suit. The Court further adjudged, that inasmuch as it did not appear the administrator had any assets in his hands, he should pay the above sums out of assets thereafter to come into his hands, or which might remain in his hands after the settlement of his accounts as administrator. It is proper to add, that an objection was made in the answer of Thomas, because the United States were not parties, but the Court decided it was not necessary to make them parties.
    It was conceded that the judgments of 1841, rendered in this Court, were a lien on all the real estate of Duncan, within the State, that the decree of June term, 1848, operated to the same extent, upon the real estate in the hands of the heirs, devisees executors, &c., of Duncan ; and that the judgments of the Morgan Circuit Court, operated only upon real estate within the county of Morgan. The judgments and decree entered in the Circuit Court of Morgan county, are yet in force, not being paid or satisfied, except some partial payments hereafter mentioned.
    The judgments at law, of this Court, recovered in 1841, being paid only in part, the United States in 1847, issued alias executions on those judgments, and the marshal levied them on lands lying in Morgan county of which Duncan died seized, and they were sold by the plaintiffs.
    Joseph Duncan, at the time of his death, did not possess sufficient property, including real and personal, to discharge the debt he owed the United States, the lands out of Morgan county, not bein' of value enough to satisly the decree of June term, 1846. And it does not appear that there was more than sufficient property in Morgan county, to meet the balance due on the judgments of 1841, of this Court.
    In this condition stood the cause, when, on the 15th of June, 1847, McConnel et al., and Matthews filed their petitions in this Court.
    The petition of McConnel et al., alleges that under the decree of 1846, sales of lands, without the county of Morgan, had taken place, upon which had been made S3,555 20, which, it insists ought to be, as to the lien of their judgment, a credit on the judgments at law, of the United States of June, 1841; that there are lands out of the county of Morgan, more than sufficient to satisfy thosd judgments, and that the United States are proceeding to sell real estate in Morgan county. The petition calls for the interposition of the Court to arrest the sale; to marshal the securities so as to give them the benefit of this lien, .by throwing the judgments of the U. S. of 1841, upon lands out of Morgan county, and that the sum made $3,555 20, be applied upon these judgments.
    The petition of Matthews is, in all respects similar to that of McConnel et al.

    A fi. fa. had issued on the judgment o-f McConnel, and $60 00 had been obtained on it. A fi. fa had also issued on the judgment of Matthews, and real estate had been levied on and $393 made by the sale of it. The executions were issued in each case within a year after the judgments were obtained respectively.
    On the 23d of December, 1847, Doremus & Nixon, and A. Ransom, & Co. likewise filed a petition setting forth most of the facts hereto 'ore mentioned, and alleging that this Court had taken full administration of the estate of Duncan; that their decree of the Morgan Court of November, 1847, had been rendered useless; that there was no priority of payment to the U. S. till the estate was ready to be disbursed; that taxes and costs of administration were to be first paid; that under the circumstances they stood as the State and individuals, and were elected with then- rights; that there was more real estate to be sold, and their partnership fund had increased the amount to be disbursed in this cause, and asking that their decree be paid out of moneys received from the sale of real and personal estate, or, if that be not proper, that the commissioner of this Court be ordered to sell land enough to satisfy the sum named in their decree, and pay it over to them.
    Various supplemental petitions were filed by all the parties, from time to time, bringing before the Court the proceedings that have since taken place in this cause, and particularly stating, that other lands out of Morgan county had been sold under the decree of June, 1846, and the money received, and that the sum of $3,789 56, was made by sale of land in Morgan county under the judgments of 1841.
    The petition of O’Donoghue, which was filed on the 10th of January, 1849, states that he bad purchased a lot of land at a. sale made by the commissioner in this cause, which lot was sold as a part of the estate of Duncan; that he paid the commissioner for it, and that Duncan had no title to it, having before his death by deed duly recorded, conveyed it to the Illinois College. And he seeks to have the sale by the commissioner to him annulled, and to have the money paid by him reimbursed out of the fund in Court.
    When these petitions were presented, this Court, without determining the questions sought to be raised by them, ordered that a sufficient fund should be reserved to satisfy their claims, which was to be paid to the petitioners, provided the Court should be of opinion upon the final disposition of the cause, that the parties were entitled to receive the amounts they sought. And there is now a fund of more than four thousand dollars awaiting the decision of the questions presented by these petitioners.
    These are the material facts.
    The applications were once heard before the former Judge of this Court, but no decision was given or order entered. They have, therefore, been fully argued before me, and it now becomes my duty to announce my opinions upon the different questions presented.
    The counsel of the United States not denying the allegations contained in the petitions, insists that the petitioners are not entitled to the relief they seek, nor to any relief.
    As the petition of O'Donaghue stands upon a footing entirely different from the others, it may be convenient to consider that first.
    The sale, under which he purchased the lot, was made by the order of this Court, and it is well settled that in all judicial sales there is no warranty, but that the rule of caveat envptor applies ; Owings v. Thompson, 3 Scam., 502. If there be fraud or concealment, or any unfair dealing, that may be a ground for an application to a court of equity; otherwise the purchaser must look to the soundness of his title. This is the established rule in England, and throughout the United States, and it should be peculiarly applicable here, where it is so easy to trace the title to real estate, the sources, in nearly all cases, being the public records of the country. It is true, where a plaintiff, in an execution, purchases a tract of land belonging, apparently, or which he supposes to belong to the defendant, and there is in fact, no title, a Court will interpose and place the parties in their former condition. But that is because it is a matter between themselves, the purchaser having neither benefited nor injured any third person; and it has been decided, that where there was no fraud, and a stranger to the execution purchased a piece of land as the property of the defendant, when he had no title, a court of equity would compel the judgment debtor to refund the amount to the purchaser, on the ground that his purchase had paid the debt. But no case has been shown, in which, under such circumstances, the purchaser could call upon the plaintiff in the execution to refund the amount. Indeed, the case just mentioned, is conclusive that he could not, for it is because the sale must so far stand as to enable the plaintiff to retain the money paid, that the defendant is liable. It could make no difference, that the money, instead of being in the hands of the party, Avas held by the officer, or paid into Court. In either case, it would seem, the right of the party to the fruits of his judgment, could not be contested. But conceding that, this last position may be questionable, still, after the money has actually been paid to the party, it is beyond the reach of the purchaser. Here the moneys paid by the petitioner has been received by the plaintiffs, and he seeks to make another fund, noAV in Court, arising from the sale of other property belonging to the estate of Duncan, liable to his claim.
    On the part of the petitioner, the Court was referred to Lansing v. Quackenbush, 5 Cowen, 38; a case where the defendant had represented he Avas the owner of lots, Avhich the party purchased, and it turned out he Avas not. On application to the Court, they said there was a remedy, but that it was in equity. Here was a false statement, and if the plaintiff were not a party to it, the remedy would be against the defendant. Adams v. Smith, 5 Cowen, 280, was also referred to. In this- case, the sheriff had sold personal property Avhich did not belong to the defendant, and the real owner sued the sheriff and plaintiffjointly and recovered. The Court allowed the amount made on the sale, and endorsed on the execution, to be stricken out, and an execution to issue for the amount of the original judgment. In this case, it Avas personal property, and the owner resorted to the remedy which the laAV gave him, the property remaining with the purchaser. Both cases are very shortly reported and clearly distinguishable from the present. But the Supreme Court of Hlinois have held under somewhat similar circumstances, there was no remedy against the plaintiff in the execution. A party purchased some property under an execution. A stranger sued for and recovered the property from the purchaser. The latter then brought suit against the plaintiff in the execution, to recover back the purchase money. The Court decided that the plaintiff was not liable. England v. Clark, 4 Scam., 486. These were all cases of personal property, but in a sale of real estate under execution no action is brought, because if the property of A. is sold on an execution against B. the title to the property is unchanged, and A. ordinarily suffers no wrong.
    In a very recent case, however, Dunn v. Frazier, 8 Blackford, 432, this question was directly decided. That was a much stronger case than this. A judgment had been obtained, and an execution was issued and returned nulla bona, and afterwards the judgment creditor filed a petition, alleging that the judgment debtor was the owner of certain real estate in fee simple. On the application of the petitioner, the Court ordered the real estate to be sold on execution. It was sold accordingly, and Frazier became the purchaser. One of the administrators of the judgment debtor was present at the sale, and solicited Frazier to buy, assuring him that the title was good. Various proceedings took place, during which, Dunn, the judgment creditor transferred the judgment to one Adams, and Frazier refused to pay the purchase money. Another execution was issued which was enjoined. Finally, Frazier paid part of the money to Adams, and the remainder into Court, (to the clerk.) The judgment debtor had no title to the property. These facts being made to appear to the Court below, by bill in chancery, it ordered the money to be paid back to Frazier, but the Superior Court of Indiana, reversed the decree, on the distinct ground, that a purchaser who buys lands and pays the money, the judgment creditor receiving it, cannot recover it back from the creditor, either at law or in equity, merely because the judgment debtor had no title to the land. The proper course in such a case, was to proceed against the judgment debtor, or his estate, by bill in equity. And even in relation to the money in Court, it depended altogether upon the fact, whether there was any thing due on the judgment, or it was an overplus, in which last event it might be paid over to the purchaser. And see Warner v. Helm, 1 Gil-man, 220.

      It will be seen, therefore, from these principles and authorities, the-petitioner, while he has no claim upon the fund now in Court, has a remedy against the estate of Duncan. That it may be unavailing is his misfortune. If the petitioner obtain the money he has paid, it must be by the voluntary act of the plaintiffs, and not by the order of this Court.
    Let us now proceed to consider the petition of Doremus & Nixon, and A. Ransom & Co. They insist that, inasmuch as there was a partnership between James M. and Joseph Duncan, and the executor of Joseph Duncan, had used the partnership goods to pay the taxes on his real estate, and the expenses of administration, they, as creditors of the partnership, have a right to be repaid out of the fund in Court.
    There can be no doubt that the partnership effects are primarily liable for the partnership debts, and that those effects ought not to be appropriated to the payment of the separate liabilities of one of the partners. And if the executors knowingly diverted them, in the manner charged in the bill filed in the Circuit Court of the State, they acted illegally. But conceding this, -it does not follow that the partnership creditors thereby obtained a lien upon the separate property of Duncan. No authority has been referred to which shows that if one partner withdraws funds from the partnership, and pays the taxes on his private estate, the creditors of the firm thereby acquire a lien on the land, unless, indeed, the decree on which the application now under consideration is founded, may be so regarded. All that can be said is, that the estate of the partner becomes liable to the creditor of the firm. The estate of the partner is still his own private property, and in case of his death, passes to his heirs or devisees, subject, if he had used the partnership funds for the purpose mentioned, to that debt as to others. Story on Part., § 97, 326, 858, 359, 360 & 361. Neither could the use of the partnership funds, by the executors, in the expenses of administration, create any lien upon the estate. It would still be a debt due from the estate. And, if the creditor of the firm was placed in the condition of those individuals to whom those expenses had been paid, it is doubtful, whether that circumstance, for reasons presently to be given, would affect the question.
    It has been decided that the priority of the United States does not reach the property of a partner in partnership effects.
      so as to pay the separate debt of one of the partners, (he being the debtor of the United States,) where the partnership property is not sufficient’ to pay the debts of the firm. U. S. v. Hack, 8 Peters, 271. But that proceeds upon the presumption that they are partnership effects. It is plain, if they had ceased to be such, and had become the separate property of the one indebted to the United States, the doctrine would be different. The true test would seem to be, whether the property belonged to the firm or the individual.
    Now it is to be remarked, that these petitioners did not ask the Court of Morgan county to do more than to declare the partnership, and to decree the payment of the partnership debt, out of assets which were at that time, or thereafter to be, in the hands of the administrator. They claimed at most, not a lien on the estate, but a priority of payment out of the estate. And the Court, though it expresses the opinion, that the proceeds of the partnership effects were liable to the debts of the petitioners, wherever they could be traced, decides they were to be paid out of the estate of the testator. Accordingly, in whatever light we may regard this decree of the Circuit Court of Morgan county, it is clear it intended that payment of the debts was to be made out of Duncan’s estate, when there should be sufficient assets for that purpose in the hands of the administrator. The Court does not even decree that the petitioners shall be first paid; but there is an alternative, that they may be paid when the administrator, upon the settlement of his accounts as such, shall have money then remaining in his hands. The decree did not create any lien, specific or general, upon any fund, nor upon the real estate of the testator, as it probably could not; and it does not vary essentially from the usual judgment against an administrator, for the debt of a deceased party.
    Though an objection was taken to the proceedings in Morgan county, because the United States were not made parties, it is said that the decree is binding on them in this Court, in this application on the part of the petitioners. Let us now examine this position, and endeavor to ascertain whether this is so.
    At the time of Joseph Duncan’s death, his indebtedness to the United States, except the balance due on the judgments at law of this Court of 1841, did not constitute a lien upon his real or personal estate. The plaintiffs had only a right to a priority of payment. And it may be admitted, for the purpose of this argument, that their priority did not extend, in point of law, so as to operate upon the real estate of which Duncan died seized, in the hands of heirs or devisees. But at the time the petitioners filed their bill in the Circuit Court of Morgan county, there was a judgment of this Court against William Thomas as the administrator, with the will annexed, &c., of Duncan; and at the time the final decree was rendered in the Circuit Court of Morgan county, there was, and had been, for more than a year, a decree standing in this Court, which took effect upon all the real estate of Duncan within the state, and directed it all to be sold for the payment of the debts of the United States, first paying prior liens. When this decree was rendered, in June, 1846, the claims of the petitioners were certainly not a prior lien, binding the estate. If, then, we give effect to the decree in the State Court, we are not the less bound to give full effect to the judgments and decree in this Court; and we will now proceed to show, that it must be considered subject to those of this Court; that under the law and by virtue of the proceedings here, the decree of the Circuit Court of Morgan county could not become operative until the claims in this Court were satisfied.
    The petitioners have not sought to enforce their decree in the State Court; indeed, so long as there is nothing in,the hands of the administrator, it could not, by its terms, be enforced. They come into this Court, and request its action upon their claims.
    By the fifth section of the act of 3d of March, 1797, it is provided that when any revenue officer, or oilier pa-son, hereafter becoming indebted to the United States by bond or otherwise, or shall become insolvent, or where the estate, of any deceased debtor, in the hands of executors or administrators, shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied. 1 Statutes at Large, 515. This applies to two classes of debtors—those who are insolvent, and those whose estates, in the hands of executors or administrators, are not sufficient to discharge all the debts due from the estate. It was intended to reach the property of the debtor, whether living or dead. It has been decided that this section is applicable to all debtors of the United States. Joseph Duncan’s estate was the estate of a deceased ■ debtor of the United States; and when it came within the other requisition of the act—that is, whenever it came into the hands of executors or administrators—then the operation of the law was complete. The doctrine of the Supreme Court of the United States, as founded on this law, and on a similar one, (act of March 2d, 1799, sec. 65,) as it respects this point is, that the party, whether assignee, executor or administrator, into whose hands the estate of the two classes of debtors mentioned passes, becomes a trustee for the United States; and from the fund in his hands, they must first be paid. Blaston v. The Farmers’ Bank of Delaware, 12 Peters, 102; Brent v. Bank of Washington, 10 Peters, 596. If it be admitted that the priority of the United States did not extend to the real estate of Duncan, in the hands of heirs or devisees, as already stated, because it does not attach as against them, still when the real estate or the proceeds thereof passed to or vested by law in the hands of the executors or administrators, the priority did attach. United States v. Crookshank, 1 Edwards’ Chancery B., 233. Consequently, whenever the proceeds of any real estate, or any personal estate, came into the hands of Thomas as the administrator, he, having notice of the debt due the government, became a trustee for the United States, and was obliged to pay them first, independent of the judgment of December term, 1844, and the decree of June term, 1846, of this Court. These merely determined the amount of the debt, but in no degree changed his duty in the premises.
    It is to be observed, that this law of Congress supersedes all state laws upon the subject of the distribution of those estates that come within its provisions. The language of the Supreme Court of the United States, in Thellason v. Smith, 2 Wheaton, 396, is, that there is no exception made by the law, in favor of a particular class of creditors. And the same Court, in Conrad v. Atlantic Insurance Company, 1 Peters, 444, say, that the priority of the United States does not yield to any class of creditors, however high may be the dignity of their debts. It follows, then, if these principles are correct, that the claims of the petitioners cannot bind any funds in the hands of the administrator, nor any lands sold under the judgments at law or the decree in chancery of this Court, nor the proceeds of the same, notwithstanding the decree of the Circuit Court of Morgan county; for whatever may be the effect • of this last decree, -it cannot operate, under the circumstances, so as to impair the rights of the United States. Field v. United States, 9 Peters, 182.
    The remaining question is as to the effect of the judgments at law of the Circuit Court of Morgan county. As the rights of the petitioners, whose claims we are now to consider, depend upon the same principle, we will examine them together. This, then, was the position of the parties. The United States had judgments, binding all the lands of Duncan throughout the State, prior, in point of time, to the judgment of McConnel et al., and that of Matthews, which last two judgments, were binding only on lands in Morgan county; and the United States had a decree subsequent and subordinate to both, but which, in extent, had the advantage of operating, like the .judgments of June, 1841, throughout the State. The petitioners insist they have a right to throw the judgments of 1841, upon land without the county of Morgan. They assert that at the time their judgments became liens upon the real estate in Morgan county, the United States, having also judgments which were liens upon that land, and which were, besides, liens upon lands out of Morgan county, are compelled to go upon these last mentioned lands, upon the principle well recognized and understood, that where a party has a lien for a debt on two funds, and another party has a lien on one of the funds only, a court of equity will oblige the party who has the double fund, to resort in the first instance, for payment, to that fund upon which the other party has no lien. And it is contended that the circumstance of the United States procuring a decree, binding the lands out of Morgan county, before the application is made here, 'can make no difference. Another principle is also invoked, which may be considered settled law in New York at least; that where there is a general incumbrance upon distinct parcels of land, and the owner aliens them at different times to different persons, the parcel last sold is to be first charged to its full value to pay the general incumbrance, and so on backwards. The argument is this: if Duncan had mortgaged all his lands in the State, to the United States, for the payment of thirty thousand dollars, and then had mortgaged his lands in Morgan county to these petitioners for the amount of their judgments, and afterwards all his lands out of Morgan county to the United States for forty-nine thousand dollars, these lands out of Morgan, being the last aliened, are, according
      to the doctrine above mentioned, to be first charged with the payment of the sum first named. And it can make no difference, it is said, if instead of mortgaging the lands out of Morgan, he had mortgaged all of his lands in the State over again; because, it will be seen, in order to adapt it to this case, we must include all of the land, the decree of 1846 of this Court binding the lands in Morgan county as well as elsewhere. It is urged that these being judgments, the principle is the same.
    This is stating the proposition fully, and carrying the analogy to as great an extent in favor of the petitioners, as was contended for by their counsel on the argument.
    The doctrine that where a man owns different parcels of land, and transfers some of them, himself also retaining some, all the parcels being subject, before the transfer, to a general incumbrance made by him, the part which he still retains shall be applied to the payment or discharge of that general imcumbrance, rather than that which he has transferred, is founded on the plainest principles of equity. It would he manifestly unjust that those persons to whom he had made transfers, should be compelled to pay off the incumbrance, when he held land which would satisfy it. Accordingly, it has been held, under such circumstances, that the property transferred is only liable, in the event of the part remaining in the owner not being sufficient to discharge the incumbrance. On the other hand, the doctrine already mentioned, as settled in New York, that land consisting of different parcels, subject to a general incumbrance, is in equity to be charged in the inverse order of the alienation of the several parcels, has been sometimes questioned, and Judge Story thinks it is not maintainable upon principle; and inclines to the opinion that there should be contribution, in such cases, according to the relative value of the estates. Story’s Equity Jurisp., §§634 a, 1233 a.

    The New York doctrine was pressed very far in the case of Schryver v. Teller, 9 Paige, 173, and as that was cited in the argument by the counsel of the petitioners, and considered conclusively settling the principles which should govern this case, it may not be improper to give it a particular examination.
    In that case, the owner of the parcels of land—one at Coxsakie, the other at Redhook—having encumbered both by judgments and eách by mortgages, on the 28th of May, 1840, mortgaged the Coxsackie property, and on the 7th of July following mortgaged it again to another person. On the 9th of June, of the same year, he mortgaged the Redhook property, and again on the 12th of the same month, this last being given to the same person that held the mortgage of the 7th of July on the Coxsackie property. On the 3d of June, 1840, a judgment was docketed, which was a lien on both. ■ The parties who held the mortgage of the 7th of July on the Coxsackie property, and those who held the mortgage of the 9th of June on the Redhook property, at different times and in different Courts, filed bills for foreclosure, and at different dates obtained the usual decrees for' sale of the property, the master having reported as to the priority of the several liens. On the 2d of March, 1841, the Red-hood property was sold for an amount sufficient to satisfy all the hens on it prior in point of time to the mortgage of the 28th of May, 1840 on the Coxsackie property. On the 23d of March, 1841, this last property was sold for an amount not sufficient to pay the costs of foreclosure and the mortgage of 28th of May, if the previous judgments, as well as the prior specific liens on that property, were paid out of such sale. Under these circumstances, the holder of the mortgage of the 28th of May made application to the Court for a modification of the original decree so as to throAV the judgments on the surplus proceeds of the Redhook property, after satisfying all liens thereon prior to his mortgage. The Court alloAved the application, on the ground that as the Redhook property was more than sufficient to pay all liens on it prior to the date of the applicant’s mortgage, in case the judgment creditors, who held liens at that time, sought to enforce them on the Redhook property, if the applicant paid them, he would have a right in equity to insist on an assignment of them, so that he might have a repayment out of the surplus proceeds, in preference to those who had liens on that property accruing after the date of his mortgage. For instance, the judgment creditors had hens on both properties, when his mortgage was taken on one. (Coxsackie.) If, in enforcing those liens, it would prejudice his mortgage, he would have a right in equity to compel them to go upon the Redhook property, because, certainly, he could be in no better position by taking an assignment of the judgments, than those who held them. Let us suppose the case put, had actually happened; that the applicant had purchased the judgments; then he would be the holder of judgments binding on both properties, and of a mortgage on one. The doctrine of the Court is, that in this condition, he could go upon the Redhook property to satisfy his judgments, in preference to one who had a lien on that property accruing after his mortgage. The Court illustrated it by saying, if there had been a mortgage on both properties, and it had been forclosed, the decree would require the property to be sold separately, and the proceeds so to be marshalled as to pay general liens on the whole out of that part of the fund arising from the sale of the Redhook property, thus far giving the applicant the benefit of his priority on the Coxsackie property, over a subsequent incumbrancer of.' the Redhook property.
    In the case just cited, there was a general incumbrance, binding both parcels, also specific incumbrances binding each, and a transfer made of one, and then the other; and it seems to proceed, upon the principle that, inasmuch as at the-time when the transfer was made of one of the parcels, the party would have the-, right to compel the general incumbrancer to go upon that parcel: not affected by the transfer, no subsequent act of the owner in. relation to that other parcel, could change his rights. Whether.it would make any difference, if the general incumbrance and. the transfer of the second parcel were held by the same person,. does not appear; but it is certain, he would, in one sense, come within the qualification or limitation of the rule laid down by-Judge Story. He says, that though the rule, that is, if a creditor • has two funds, he shall take his satisfaction out of that fund upon which another creditor has no lien, is so general, it is never applied, except when it can be done without injustice to the person who has the double fund, as well as the debtor. It is never done - when it trenches upon the rights, or operates to the prejudice of the party entitled to the double fund. Equity Jurisprudence, § 558, 559, 560, 633. The object is to satisfy both creditors. It. is apparent, however, whenever the double fund is insufficient., to pay all the claims against it, and the same person has a right to proceed against both, and against one alone, it does affect the; right of the party entitled to the double fund. For example, in. this case, the United States have a general lien on different par- • cels of land; creditors, the petitioners, have also a general liem on some of the parcels; and the United States have a lien which.. may well be considered specific upon all the parcels. Now it is plain, if the creditors turn the general lien of the United States over to the lands not bound by the lien of the creditors, under the facts of this case, it diminishes, by so much, the fund which is to satisfy the decree of 1846. In other words, whatever is paid to the petitioners is an absolute loss to the plaintiffs. Notwithstanding such would be the effect, in this case, upon the party entitled to the double fund, it may be questionable whether the circumstance of taking a subsequent lien, would or ought to place them in a better position; certainly not, if the true reason be given for the rule, in the case in Paige. To apply the argument of that case to this ; if these petitioners had paid off the balance due on the judgments of the plaintiffs of 1841, they would have the right in equity, to insist upon an assignment thereof.
    The case of Schry ver v. Teller, if we admit that it was rightly ruled, must be regarded as deciding that a general lien will be thrown upon a particular parcel of land so as to give a party having a mortgage the benefit of his priority over subsequent incumbrances, either of the whole or a part; that is, where the question is dependent upon priority of time alone. But it does not follow that this would be the rule where there is a priority of right, that is in a case where the parties, as such, do not stand upon an equality of right.
    Let us, therefore, examine how far the character of the parties 'in this case, affects the question. The plaintiffs constitute the ■sovereign power of the country, and, according to the jurisprudence of most States, under certain circumstances, are entitled, as a creditor, to peculiar privileges. It was so under the Roman law; is so under the law of England, and under our own.
    We must bear in mind, that the statutes giving the government a priority, are presumed to have for their object the public good, and are, therefore, to be liberally construed. United States v. State Bank of North Carolina, 6 Peter’s, 29 ; Beaston v. Farmers’ Bank of Delaware, 12 Peters, 134.
    The application was presented in this case, after a levy had been made by the United States, upon lands in Morgan county, under executions issued on the judgments of 1841. The lands were sold and the moneys appropriated upon those judgments, •subsequefit to the filing of the original petitions, as appears by the supplemental petitions. This Court did not interfere with the proceedings under the executions, but suffered them to continue, and directed that there should be reserved a sufficient fund to meet the claim of the petitioners, from what might be made by the sale of lands in this case. The rights of the petitioners ought, perhaps, for that reason, to be considered the same as if the money arising from the sale of the Morgan lands had been paid into Court, subject to its order herein. And, apparently; it should be governed by the same principles as if the petitioners, instead of pursuing the course they have, had applied to a court of equity to restrain the proceedings on the executions, waiving for the purpose of the supposed case, all objections on account of sovereignty, and the United States had come and given, in answer, the decree of 1846; the indebtedness of Duncan’s estate; in fine, stating all the facts and claiming a priority of payment under the law.
    It would seem upon principle, as well as by the authority of adjudged cases, if we throw out of view the decree of 1846, and the question of sovereignty, there coul<l|be nodoubt of the right of the judgment creditors to compel the plaintiffs to look to lands out of Morgan county, not bound by their lien, for the satisfaction of the balance due the United States, upon the judgments of 1811, for in that case, there would be property sufficient to pay both. It is true, technically speaking, the petitioners, if they paid the judgments of 1841, could not compel the plaintiffs to assign those judgments to them, because they could not strictly reach the United States. Hill v. United States, 9 Howard, 386. But if this difficulty were avoided, the question is whether the decree of 1846, which operated specifically upon lands not affected by the judgments of the petitioners, changes the principle.
    It must be conceded the question is not free from embarrassment, in consequence of the difficulty of extracting from the various cases which have been decided, the true rule of interpretation of the acts of Congress, laid down by the Supreme Court.
    •The petitioners had taken out executions on their judgments, within a year after they were rendered; on one some real estate, not in question here, had been sold; on the other, a small payment had been made; as to the balances due on them respectively, the judgments became general liens.
    It has been uniformly held, in all the cases, that the priority of the United States, does not disturb any specific lien, nor the perfected lien of a judgment; that is. it does not supersede a mortgage on land, nor a judgment made perfect by the issue of an execution and a levy on land. Thelluson v. Smith. 2 Wheat., 396; Conard v. Atlantic Insurance Company, 1 Peters, 386.
    But in the case of a general lien it is not so clear. The case of Thelluson v. Smith, if it is not considered, as in some respects, overruled by the case of Conard v. The Atlantic Ins.' Co., certainly establishes the doctrine that the priority of the United States does not yield to a judgment which is a general lien upon real estate. The facts were, that Thelluson and others, recovered a judgment against Crammond, which, it was admitted by the Court, was a lien upon his lands on the 20lh of May, 1805. Afterwards he made an assignment of all his estate, being insolvent, and in debt to the United States, so as to bring him within the operation of the acts of Congress. The United States subsequently brought suit against him, had judgment, sued out execution, levied on and sold an estate, called Sedgeley, admitted to be bound by the judgment of May 20, 1805. The marshal having received the proceeds, Thelluson et al., brought suit against him. They had not issued execution, nor levied on the estate by virtue of their judgment. One of the questions made in the case was, whether the United States were entitled to be paid in preference to the judgment creditor? This the Supreme Court decided in the affirmative, concluding by saying; “a judgment gives the judgment creditor a lien on the debtor’s lands, and a preference over all subsequent judgment creditors. But the act of Congress defeats this preference.” This was under the act of 1799, but we have already seen, that in this respect, it is like the act of 1797.
    This case was particularly examined and reviewed in Conard v. The Atlantic Insurance Company. It is there said, that Thelluson v. Smith was a case where a judgment creditor sought to recover the proceeds of a sale of land made under an adverse execution, on the ground that he had a general lien by judgment on the land; and in such, circumstances the action was not maintainable. The real ground of the decision, the Court says, was, that the judgment creditor had never made his lien specific; that he had no title to the proceeds as his property; and if they were to be deemed general funds of the debtor, the priority of the United States attached; that a mere lien on land did not convey the legal title to the proceeds of a sale, made under an adverse execution: the ease did not establish the principle, that a specific lien could be displaced by the priority of the United States; because that priority was not, of itself, equivalent to a lien. Judge Johnson, in his separate opinion, says, that he never acknowledged the authority of the case of Thelluson v. Smith, on the point supposed to be decided by it—the precedence of the debt of the United States, as to a previous judgment, in the ease of a general assignment; and that he concurred in it, only because of the want of priority between the parties. He thought the sale of the Sedgeley estate under the execution was a nullity, because the assignment of Crammond divested all Ms interest, so as to place it beyond the reach of the execution issued on the judgment of the United States. Suppose, however, the assignees in whom the estate had vested—admitting it had vested—had sold it notwithstanding the lien; then, according to my understanding of the case of Thelluson v. Smith, even as corrected and explained in Conard v. The Atlantic Insurance Company, the proceeds of the sale in the hands of the assignees, would have been subject to the priority of the United States. As, in this case, if the lands in Morgan county had been sold by the executors or administrator, under the authority of the will or of the law, the proceeds would have been liable, not to the judgment creditors, (the petitioners,) but to the United States; it being understood in all such cases, that the executor or administrator in whose hands the proceeds were, had notice of the debt due the government.
    In Conard v. The Atlantic Insurance Company, the Court are careful to say, the priority of the United States does not affect any specific lien; but in the ease of Brent v. The Bank of Washington, 10 Peters, 596, the Court state, that it has never been decided that the priority of the United States affects any lien, general or specific, existing when the event happened which gave them priority.
    Suppose, then, the case of Thelluson v. Smith may be considered as shaken, and, indeed, overruled—about which some doubt may be entertained—so far as it gives a preference to the United States over the general lien of a judgment creditor; it would follow that the judgments of these petitioners would not be affected by the mere force of the statute of 1797; and, possibly, we might go farther, and say they would not be affected by any mere judgment or decree in favor of the United States, on the indebtedness of Duncan’s estate, rendered after the date of the judgments of the petitioners. But this Court is asked to go even farther; to say that the United States shall forego their lien of 1841, superior to that of the petitioners, as to the lands in Morgan county, and release a part of the lands bound by their decree of 1846, out of that county; so that the petitioners may be paid in preference to the plaintiffs. This, it seems to me, cannot be done. The United States are entitled to all their legal rights; and, in the case supposed of an application to a Court of Equity, to say to the judgment creditors: We will enforce our lien of older date than yours, made specific by a levy before you applied to the Court: we will retain our lien under the decree of 1846 upon the lands out of Morgan county: we are not to be regarded as ordinary individual creditors of the estate; your rights must yield to ours. The same answer to the application of the petitioners, must be given in this Court. If they have a lien, so have the United States; and to decide that under the circumstances of this case, the latter, could not enforce their judgments of 1S41, would be to say, in effect, they had no priority of payment at all; but that they must stand upon an equal footing with all other creditors; to prevent which was the very object of that portion of the statutes of 1797 and 1799, already referred to.
    We have been told their lien cannot be displaced by that which is not a lien—the priority of the plaintiffs. It is not. There is not only a priority, but that priority has been perfected into specific liens. If it be said, that, discarding the decree of 1846, the United States might be regarded as individuals, and thrown on the lands out of Morgan county for the satisfaction of their judgments of 1841, and they ought consequently to be treated in the same manner, notwithstanding that decree: if the first could be done, the other would not necessarily follow; and the reason is—in the former case the United States would be paid; in the latter, not; and the law is imperative they shall be first paid, when the estate of any deceased debtor, in the hands of administrators or executors, is insufficient to pay all the debts due from the deceased. And certainly, the lands of the deceased debtor, when these petitioners made their application to this Court, were as strongly bound by the priority of the claim of the United States, as the proceeds of them would have been, in the hands of executors or administrators.
    The laws of the United States giving a priority to the government, are of general application in the cases therein stated; and if a debtor is to be excepted out of the general rule, it devolves upon the party alleging the exception, to show it. I think these petitioners have not satisfactorily established their right to be withdrawn from the ordinary predicament of creditors, when they come in competition with the claims of the government. In all such cases, it is manifest Congress intended to give priority of payment to the United States, over all other creditors. Beaston v. The Farmers’ Bank of Delaware, 12 Peters, 134.
    Admitting that the question is not free from difficulty, yet I have not been able to arrive at any other conclusion than that which is here announced. It is sometimes a hard rule, undoubtedly, upon individual creditors and upon families, that a man’s whole estate should be swept away, to pay a debt due to the government; but Courts of justice can only expound and apply the law; and if, upon a fair and impartial examination of the subject, they can ascertain its intent and meaning, their duty is simply to administer it, ’as it becomes applicable, in the various relations of life, to the rights and interests of the parties before them.
    Archibald Williams, District Attorney, for the Pltffs.
    D. A. Smith & Wm. Brows, for the Petitioners.

       The opinion of the profession in Illinois, is so general in favor of the doctrine that the lien of judgments of the United States Court, is co-extensive with its jurisdiction, as stated in the text, it was not controverted on the argument. See the question discussed in a report which was confirmed by the Circuit Court of the U. S. for the Eastern District of Pennsylvania, contained in ‘he case of Bayard v Lombard et al, 9 Howard’s Reports, 530. The Supreme Court of the United States, held that the derision of the Circuit Court was final and conclusive under the circumstances, and could not be reviewed, consequently, no opinion was given as to the lien of judgments obtained in the Circuit Court of the United States. Wallace Jr. R, 196, S. C.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    The Riverside Company v. Augusta M. Townshend et al.

      Filed at Mt. Vernon November 10, 1886.

    1. Setting aside tax deed—reimbursing claimant under tax deed for taxes, etc., paid—in what proceeding—prospective operation of the statute. The proviso to section 224 of the Revenue act, in force July 1,1885, requiring any judgment or decree of court setting aside a tax deed, to provide that the claimant shall pay the holder of such deed all taxes, legal costs, etc., paid by such holder or his assignors, has no application to an action of ejectment against the holder of a tax title, hut relates to equitable proceedings instituted for the purpose of setting aside tax deeds. It was not the purpose of the statute to change the action of ejectment into a chancery proceeding, or to confer any new or enlarged jurisdiction upon courts of-law.
    2. Same—impairing vested rights. Nor was it the design, by that section of .the statute, to change or affect the vested rights of others. The legislature has not the power to deprive a party of a vested right, or to say that a vested right, which is absolute and unconditional, shall only be exercised upon certain conditions imposed by itself. So where it has been adjudicated that a certain tax deed is invalid, and unavailing as a defence in an action of ejectment, no subsequent legislation can operate to impair the right of the plaintiff in the ejectment suit to the protection of that ruling.
    3. Formeb adjudication—whether a bar to a subsequent suit, generally. A judgment upon the merits is an absolute bar to a subsequent action upon the same claim or cause of action, not only as to every matter which was offered and considered to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.
    4. But when the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered. In such case, the inquiry is as to the question actually litigated and determined,—not what might have been thus litigated and determined.
    5. Same—;judgment in forcible entry and detainer, as a bar to am, action of ejectment. A judgment in an action of forcible entry and detainer can not be pleaded as a bar to an action of ejectment, for the reason that the questions involved in the two proceedings are different. The question of title can not be inquired into in forcible entry and detainer, and if it could, a judgment therein would be no bar, without proof that the question of title was raised and decided.
    6. Ejectment—affirmative title arising under twenty years' possession. Where the plaintiff in ejectment shows an adverse possession for twenty years, so that the entry is barred, he is entitled to recover even against a defendant w’hose possession, for a less period, is lawful.
    7. Same—rights acquired by possession for less than twenty years. But, while prior possession of land for a less period than twenty years is prima facie evidence of title, and will authorize a recovery in ejectment as against a mere intruder or trespasser, it will not authorize a recovery against a defendant who is lawfully in possession.
    8. Same —conditional judgment—whether allowable. Where a plaintiff in ejectment recovers judgment in a case where a tax title is set up in defence, it is error to stay the execution of the judgment until the plaintiff shall pay the defendant the sums advanced by him for the tax title, etc. The court has no right to render a conditional judgment.
    Appeal from the Circuit Court of Gallatin county; the Hon. Carroll C. Boggs, Judge, presiding.
    Messrs. Bell & Green, and Mr. Carl Rœdel, for the appellant:
    The act of 1885 is unconstitutional and void, because it compels a party to buy justice. Wilson v. McKenna, 52 Ill. 43; Reed v. Tyler, 58 id. 288.
    But if we were to concede the constitutionality of the act of 1885, it can have no application to this case, unless it can be construed to have a retroactive operation, which can not" be done. There is nothing in the language of the act to warrant any such construction.
    It is a doctrine applicable to all laws, that it will not be supposed the legislature intended a law should have a retrospective operation, unless where that intention has been manifested by the most clear and unequivocal expression. In re Tuller, 79 Ill. 99; People v. Thatcher, 95 id. 109; Knight v. Begole, 56 id. 122; Hatcher v. Railroad Co. 62 id. 477; McHaney v. School Trustees, 68 id. 140; Parmelee v. Lawrence, 48 id. 331; Marsh v. Chestnut, 14 id. 223; Thompson v. Alexander, 11 id. 54.
    The act of 1885 is not applicable to an action of ejectment. The circuit court, as a court of chancery, has jurisdiction to set aside a tax deed as a cloud upon the title, where the party seeking the relief is in possession; but the relief is granted only on equitable terms, which require the party to pay to the holder of the tax deed the amount paid at the tax sale, and subsequent taxes paid, with legal interest thereon. Reed v. Tyler, 56 Ill. 288; Barnett v. Cline, 60 id. 205; Reed v. Reber, 62 id. 240; Farwell v. Harding, 96 id. 32; Moore v. Wayman, 107 id. 192; Peacock v. Carnes, 110 id. 99.
    The cause of action in the forcible entry and detainer suit, even if it were shown that the deed of appellees was used in defence in that action, was not the same cause of action which is involved in this case, and hence the judgment in that ease is no bar to this action of ejectment. In the action of forcible entry and detainer, the title to the property in controversy was not and could not be involved. Shoudy v. School Directors, 32 Ill. 290; Johnson v. Baker, 38 id. 98; McCartney v. McMullen, id. 237; Smith v. Hoag, 45 id. 250; Thompson v. Sornberger, 59 id. 326; Huftalin v. Misner, 70 id. 205; McGuirk v. Burry, 93 id. 118; Kepley v. Luke, 106 id. 395.

      Mr. R. W. Townshend, and Mr. T. M. Eckley, for the appellees:
    The act of 1885 does not require a party to buy justice—it . merely restricts a party from doing injustice. Prior to the adoption of this amendment, it was the rule in equity requiring a complainant to do justice as a condition to equitable relief, and the object of the amendment was to extend these equitable principles to proceedings at law.
    The statute under consideration does not purport to affect a judgment or decree of court rendered before its passage,— it operates only upon such judgment or decree of court as shall be rendered after its passage.
    The fact the law was passed pending the litigation, does not invalidate it, as was decided by the case relied upon by appellant. Parmelee v. Lawrence, 44 Ill. 405; 48 id. 331.
    If an attempt had been made to apply the act to judgments entered before its passage, another question would be presented, and the authority relied upon by appellant might have had some application. Knight v. Begole, 56 Ill. 123.
    The amendment of 1885, to section 224 of the Revenue act, is applicable to the action of ejectment.
    The judgment in. the forcible entry and detainer suits was a bar to relitigating the validity of the tax title. The court had to determine the validity of the judgment and precept. Johnson v. Baker, 38 Ill. 98; Johnson v. Bantock, id. 113; Kepley v. Luke, 106 id. 396; Kratz v. Buck, Ill id. 40.
    A prior adjudication between the same parties is conclusive, not only as to matters actually determined, but as to every other thing which might have been, by the exercise of reasonable diligence, submitted for adjudication in the same suit. To this rule there is no exception, no matter in what form of action it may have been adjudicated. Garrick v. Chamberlain, 97 Ill. 620; Aurora City v. West, 7 Wall. 82; Hawley v. Simons, 102 id. 115; Hamilton v. Quimby, 46 Ill. 90.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of ejectment, which is now before us for the second time. It is reported as The Riverside Co. v. Howell, 113 Ill. 256. Since the former decision, it has been re-docketed in the circuit court of Gallatin county, and the appellees here were, on their own motion, substituted, as defendants in the court below, in the place of William A. Howell, their tenant.

After our opinion was filed in the ease, at Mount Vernon, on March 24, 1885, section 224 of the “Act concerning revenue, ” approved March 30, 1872, in force July 1, 1872, as amended by an act, approved May 30, 1879, in force July 1, 1879, was amended by an act of the legislature, which added the following proviso at the end of the section: “Provided, that any judgment or decree of court setting aside any tax deed procured under this act, shall provide that the claimant shall pay to the party holding such tax deed all taxes and legal costs, together with all penalties, as provided by law, as it shall appear the holder of such deed, or his assignors, shall have properly paid, or be entitled to, in procuring such deed, before such claimant shall have the benefits of such judgment or decree.” (Laws of 1885, p. 234.) This proviso went into force July 7, 1885.

Upon a second trial of the suit, before the circuit court, without a jury, the court found the issues for appellant, and rendered a judgment in accordance with the terms of the proviso, here quoted. The judgment, after finding, that appellant owns the fee of a part of the premises, and an estate for the life of another in the balance thereof, and after further finding, that the tax deed, set up by appellees, is void, and should be set aside, and that appellees paid a certain amount of money to get their deed and for subsequent taxes, directs, that -appellant recover the premises, and that, “upon the payment by the plaintiff to the defendants of the sum of $2485.23, a writ of restitution is hereby ordered to issue hereon, the issuance of the same being stayed, until such sum be paid as aforesaid. ”

The errors, assigned by the appellant, question the validity of so much of the judgment of the court Below, as formally sets aside the tax deed, and makes the payment of the taxes, etc., a condition precedent to the issuance of the writ of possession.

It is manifest, that the judgments or decrees, referred to in the foregoing proviso, are judgments or decrees, rendered in proceedings, which have for their object the setting aside of tax deeds, procured under the Revenue act. An ejectment suit is never brought for such a purpose. It is not the proper office of a judgment in ejectment to set aside a tax deed. By adopting the proviso in question, the legislature merely intended to provide, that, wherever, in any proceeding, properly instituted for that purpose, a tax deed should be set aside, the judgment or decree, directing it to be done, should require the claimant to pay, to the holder of the deed, whatever such holder had disbursed for taxes and costs, and whatever the law awarded him, as penalties. It was not the design of this amendment to change the action of ejectment into a chancery proceeding, nor to confer any new or enlarged jurisdiction upon courts of law. No other tribunals were to be vested with the power of setting aside tax deeds than those, which had been in the habit of granting such relief before the passage of the new law.

This proviso can have no application to the deed, which we have already passed upon in this case. It will not be presumed, that the legislature intended to enact such a retrospective statute, as would affect and change vested rights. Such enactments “are very generally considered, in this country, as founded on unconstitutional principles, and, consequently, inoperative and void. ” (1 Kent’s Com. 455.)

By the decision of this court, announced in an opinion, filed before the above proviso was adopted, the tax deed in question was held to be invalid, and to constitute no legal bar to the recovery of appellant, in its action of ejectment. After that decision was rendered, appellant had the right to proceed with the further prosecution of its suit, under the protection of our ruling, that the tax deed of appellees should not stand in the way of its recovery. The judgment of the circuit court virtually nullifies that ruling, and holds, in effect, that the deed shall be a bar to the suit, and shall stand in the way of a recovery, unless appellant pays to appellees the sum of $2485.23. The deed was declared by that decision to be unconditionally illegal. The legislature has no power to say, that a vested right, which is absolute and unconditional, shall only be exercised upon certain conditions,'imposed by itself, nor do we think, that they designed, by the passage of the enactment, now under consideration, to assume the exercise of any such power.

Cross-errors have been assigned by the appellees, which attack the right of appellant to a judgment for the property, even upon its payment of the amount, required of it by the circuit court. The cross-errors are based upon the refusal of the trial court to hold, as law, certain propositions, submitted to it by appellees, to the effect, that the validity of the tax deed has become res judicata., and can not be questioned by appellant. The suits, in which, it is alleged, that the matters, here involved,.have been already adjudicated, are two actions of forcible entry and detainer, one brought before a justice of the peace, and the other in the circuit court. The action before the justice was brought in June 1881 by the appellees against one Charles Kampan, who is alleged to have) been a tenant of appellant. June 16, 1881, judgment was rendered in favor of the appellees, and possession delivered to them on June 21, 1881.

The proceedings in the action before the justice, can not be set up, as a bar to the present suit, for the reason, that appellant was not a party to that action, Kampan was the defendant therein, and made no defence, suffering judgment to be recovered against himself. There is no evidence, that appellant ever had any notice of the suit against Kampan, and its rights here can not be barred by the judgment in that suit, no matter what questions may have been adjudicated thereby.

The second action of forcible entry and detainer was begun, on August 23, 1881, in the circuit court of Gallatin county* by appellant against William A. Howell and John E. Hall, who are shown, by the evidence, to have been tenants of appellees. The case was tried before a jury, who returned a verdict of “not guilty, ” and, in September 1881, judgment was rendered against appellant. This judgment is pleaded here, as a bar to the present action of ejectment. Appellees insist, that the validity of their tax deed was or might have, been adjudicated upon and determined, in the action of forcible entry and detainer in the circuit court, and that appellant is estopped by the judgment of that court therein, from assailing the validity of the tax title in this case.

But a judgment in an action of forcible entry and detainer can not be pleaded, as a bar to an action of ejectment, for the reason, that the questions involved in the two proceedings, are different. The object of the action of ejectment is to try the title to property, while, in an action of forcible entry and detainer, “the immediate right of possession is all that is involved, and the title can not be inquired into for any purpose.” Kepley v. Luke, 106 Ill. 395; McGuirk v. Burry, 93 id. 118; Smith v. Hoag, 45 id. 250; McCartney v. McMullen, 38 id. 237; Shoudy v. School Directors, 32 id. 290.

Counsel for appellees quote the sixth clause of the second section of the forcible entry and detainer act, (Starr & Curtis’ Stat. chap. 57, page 1175,) which provides,- that “the person entitled to the possession of lands or tenements may be restored thereto * * * when lands or tenements have been *" * * sold under the judgment * * * of any court in this State, * * * and the party to such judgment, * * * after the expiration of the time of redemption, where redemption is allowed by law, refuses or neglects to surrender possession thereof, after demand in writing by the person, entitled thereto, or his agent, ” and refer to certain decisions of this court which hold, that, in order to recover under the clause so quoted, the plaintiff must show a valid judgment, execution and sheriff’s deed. (Johnson v. Baker, 38 Ill. 98; Johnson v. Bantock, id. 113; Kratz v. Buck, Ill id. 40.) We do not deem it necessary to decide, whether this clause was designed to include judgments for taxes against land, or not.

It is to be noted, that the action of forcible entry and detainer, which is relied upon as a bar, was not begun by appellees against appellant; and, hence, appellees did not, as plaintiffs, set up, in the complaint, their tax judgment, sale and deed, and allege the refusal of appellant to surrender possession. The- action was brought by appellant against appellees. Appellees were already in possession of the property.

If it were allowable for a party, having the possession, to defend it, in. an action of forcible entry and detainer, by showing the judgment and sale, contemplated by the sixth clause of the act, there is no evidence, that the tax judgment, relied on by appellees, was proven by them, in their defence against the action, brought by appellant. The complaint, as set out in the record, makes no other allegation than the general one, that Howell and Hall “unlawfully withhold the possession thereof from the said Riverside Company. ” The record contains no proof whatever, that the question of the validity of the tax judgment was brought before the court, which rendered the judgment in the forcible entry and detainer suit, or was, in any way, determined or adjudicated upon by that court. It'is not sufficient to say, that the question might have been submitted for adjudication in that suit. The cause of action, there, where the question involved was the right of possession, is different from the cause of action in this ejectment suit, where the question involved is the title to the property.

There is a well founded distinction, laid down in the books, between “the effect of a judgment, as a bar or estoppel, against the prosecution of a second action upon the same claim or cause of action, and its effect, as an estoppel, in another suit, between the same parties, upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action * * * concluding parties, not only as to every -matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. * * * But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. ” (Cromwell v. County of Sac, 94 U. S. 351.) In Equitable Trust Co. et al. v. Fisher et al. 106 Ill. 189, an action of forcible entry and detainer had been brought, under the sixth clause of the act, by the purchaser at a sale under a trust deed, against the grantor in possession, and judgment was rendered in favor of the purchaser. Such grantor, or maker of the trust deed, after-wards filed a bill to set aside the sale, and the judgment against him, in the forcible detainer suit, was pleaded and relied upon, as a bar to the relief, prayed for in the bill. We held, that the judgment was not a bar, in that case, and there said: “As a general rule a judgment or decree can only be so pleaded, where the same question involved has been adjudicated and determined by a court of competent jurisdiction to try and determine the question. In that case, the question of the right of possession was alone involved, and not the title. ”

We are of the opinion, that the judgment rendered in favor of appellees, in the action of forcible entry and detainer, brought against them by appellant, can not be pleaded as a bar in the present suit.

It is further claimed by appellees, and assigned, as one of the cross-errors, that appellant, on the trial below, did not prove title in itself to the property in litigation. It is not denied, that appellant has established its ownership of an undivided two-thirds of the lots. It appears, however, that, under a decree, rendered November 1, 1855, in a foreclosure proceeding in the circuit court of Gallatin county, an undivided one-third part of lot 1144 was sold by Martin S. McAtee, a special commissioner, appointed by the court, on March 5, 1856, to William A- Docker. The sale was reported to the court, and confirmed. On December 21, 1857, the commissioner executed a deed to Docker, and reported to the court, that he had done so. Appellant claims under this deed, and it was objected to, as having no seal. It was then offered as color of title, and for the purpose of showing the extent and boundaries of the possession of the grantee therein.

The proof is clear, independent of the deed in question, that William A. Docker, during his life, and his heirs and their grantees, since his death, have been in the possession of lot 1144 from the date of the deed, December 21,1857, to some time in 1881, a period of more than twenty years. Appellant, having shown possession under a claim to the fee, by itself, and those, under whom it holds, for more than twenty years, was entitled to recover.

It is, however, insisted by appellees, that a plaintiff in ejectment, whose title is based on possession only, can not recover against a defendant, who is lawfully in possession; and, that, as they were put into possession of the property by a writ of restitution, issued upon the judgment, obtained by them against Kampan, in the action of forcible entry and detainer, brought before the justice of the peace, their possession is lawful, and they are not intruders.

Counsel for appellees lose sight of an important distinction between prior possession and aclve,rse possession. (Sedgwick & Wait on Trial of Title to Land, sec. 723.) A prior possession of land, for a less period than twenty years, is prima facie evidence of title, and will authorize -a recovery in ejectment, as against a mere intruder or trespasser. (Bowman v. Wettig, 39 Ill. 416; Herbert v. Herbert, Breese, 354; Dills v. Hubbard, 21 Ill. 328.) But a prior possession, for less than the statutory period of limitation, has been held not to authorize a recovery against a defendant, who is lawfully in possession. (Jackson v. Rightmyre, 16 Johns. 314.) In Drew v. Swift, 46 N. Y. 204, the court say: “The defendant was .not a trespasser, but went into possession, having title, and the plaintiff was not, therefore, entitled to recover, upon proof of any prior possession, other than an adverse possession for a period, which would bar an entry. ”

Where the plaintiff in ejectment shows an adverse possession for -twenty years, so that the entry is barred, he is entitled to recover even against a defendant, whose possession, for a less period, is lawful. (Jackson v. Dieffendorfer, 3 Johns. 269; Jackson v. Olitz, 8 Wend. 440; Fairman v. Beal, 14 Ill. 244; Hinchman v. Whetstone, 23 id. 185; Paullin v. Hale, 40 id. 274.) Angelí on Limitations, see. 381, lays down the doctrine on this subject, in the following words: “Where neither party has title in an action of ejectment, it is clear, that the party showing the prior possession is entitled to recover, unless the last possession has been continued adversely for the time, which the Statute of Limitations prescribes. It is also unquestionable, that, where land has been held under a claim to the fee, for the time prescribed by the statute, and an entry is made by a party, who has the written title, such party may be dispossessed, by an ejectment, brought by him, who has so held and claimed.”

We hold, that the cross-errors of appellees are not well assigned. The judgment of the circuit court is reversed, in so far as it sets aside the tax deed, and finds the amount of taxes and penalties and costs, and in so far as it requires a payment of $2185.23, as a condition precedent to the issuance of a writ of possession. In all other respects it is affirmed.

Judgment reversed in part and in part affirmed.

Scholfield and Craig, JJ., dissenting.


author: Mr. Justice Craig

text:
    Charles Hansberg v. The People of the State of Illinois.

      Filed at Ottawa November 13, 1886.

    1. Intoxicating liquors—whether “beer” is to be so regarded. The Q term, intoxicating liquors, as used in section 6 of the Dram-shop act, and which provides a punishment for sales or gifts thereof to minors, etc., means spirituous, malt or vinous liquors. Proof of the sale of “beer,” without showing what kind of beer it was, or whether it was malt, vinous or spirituous, is not sufficient to sustain an indictment under that section.
    2. The statute prohibits the sale of intoxicating liquors, only, and not “beer,” by that name. There being some kinds of beer which are neither a malt liquor nor intoxicating, to convict for a sale of “beer” it must be shown that it is one of the liquors named in the statute.
    3. Instruction—should be based on evidence. An instruction without any evidence on which to base it, is calculated to mislead, and is erroneous. Where there is no evidence that a defendant has sold intoxicating liquor, under an indictment for that offence, it is error to instruct the jury to find him guilty, if they believe, from the evidence, that he has sold such liquors.

      Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    Messrs. Rubens, McGaffey & Ames, for the appellant:
    Whether certain beer is malt or intoxicating, is a question of fact, and when the law does not specifically name beer among the liquors the sale of which it prohibits, no conviction can be had without proof that the beer sold comes within the provisions of the statute. Lathrop v. State, 50 Ind. 555; State v. Chappel, 116 Mass. 7; Commonwealth v. Blas, id. 56; State v. Starr, 67 Me. 242; State v. Wall, 34 id. 165; People v. Ziegler, 6 Park. Crim. 355; State v. Biddle, 54 N. H. 379; Kurz v. State, 79 Inch 488; Klare v. State, 43 id. 483.
    Mr. George Hunt, Attorney General, for the People:
    The only question raised in this ease is, is “beer, ” per se, intoxicating, or is it malt liquor, within the meaning of the Dram-shop act. We have discussed this question in Birr v. People, 113 Ill. 645, to which we refer. See, also, Godfreidson v. People, 88 Ill. 284, and Bandalow v. People, 90 id. 218.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an indictment against Charles Hansberg, for a violation of section 6 of chapter 43, of an act entitled “Dram-shops, ” which is as follows: “Whoever, by himself, or his agent or servant, shall sell or give intoxicating liquor to any minor, without the written order of his parent, guardian or family physician, or to any person intoxicated, or who is in the habit of getting intoxicated, shall, for each offence, he fined not less than $20 nor more than $100, and imprisoned in the county jail not less than ten nor more than thirty days.” The indictment contained six counts, in each of which the defendant was charged with selling intoxicating liquor to a minor, in violation of the statute. To the indictment the defendant pleaded not guilty, and on a trial before a jury he was found guilty in manner and form as charged in the second and third counts of the indictment. The court overruled a motion for a new trial, and entered a fine of $100 against the defendant for each offence of which he had been found guilty.

The violation of the statute for which a fine is imposed, consists in selling or giving intoxicating liquors to a minor without the written consent of the parent, etc. What was intended fey the term “intoxicating liquors, ” as used in the section under which the indictment was passed, will be found in section 1 of the act, as follows: “That a dram-shop is a place where spirituous or vinous or malt liquors are retailed by less quantity than one gallon, and intoxicating liquors shall be deemed to include all such liquors within the meaning of this act.” Here the defendant was indicted for selling to a minor intoxicating liquor,—that is, spirituous, vinous or malt liquor. It was not proven, on the trial of the cause, that the defendant had sold spirituous, vinous or malt liquors, or lager beer, but the proof, and only proof, was, that he had sold “beer.” No evidence whatever was offered or admitted for the purpose of explaining or showing what “beer” was made of, or what its characteristics were, or whether it was malt, vinous, spirituous or intoxicating. On all of these matters the jury were left without evidence, and entirely in the dark. Under such circumstances, was the court authorized in instructing the jury, as was done, that they should find the defendant guilty, if they found, from the evidence, that he had sold intoxicating liquors, as charged in the second and third counts of the indictment?

It is a familiar rule, that instructions must be based upon the evidence, and unless there was some evidence before the jury that the defendant had sold intoxicating liquors, it was error to so instruct, as an instruction, where there is no evidence whatever upon which it can be predicated, is calculated to mislead. It was not enough for the People to prove merely that the defendant sold “beer” to a minor, because section 6 of the Dram-shop act was only violated by a sale of intoxicating liquors, and what is included in and known as “béer, ” is not necessarily an intoxicating liquor. In Webster’s Unabridged Dictionary we find the following definition of the word “beer“1. A fermented liquor, made from any malted grain, with hops and other bitter flavoring matters. 2. A fermented extract of the roots and other parts of various plants, as, spruce, ginger, sassafras, etc. Beer has different names, as, small beer, ale, porter, brown stout, lager beer, etc., according to its strength or other qualities.”

From' the definition of the word “beer,” given, can it be said that the article purchased was an intoxicating liquor ? Suppose the “beer” purchased was made of spruce, of ginger, or sassafras, according to the definition of Webster it would have been beer, and yet not an intoxicating liquor, and the statute would not have been violated by its sale. The fact is beyond dispute that there are different kinds of beer. Some are intoxicating, others not. Whether beer which may be sold in a given ease is malt or intoxicating beer, or ginger or root beer, or some other of the various kinds of beer which are known not to be intoxicating, is always a question of fact, to be determined from the evidence introduced on the trial. Our statute does not prohibit the sale of .beer. If it did, it would be sufficient for the prosecution to prove a sale of beer, just as was done in this case. But unless the language is to be disregarded, the statute prohibits the sale of intoxicating liquor, and when beer has been sold, it is necessary to show, by the evidence, that the article sold falls within the prohibition of the statute, otherwise a conviction can not be sustained. Had the proof been that the beer was intoxicating, as held in Godfreidson v. The People, 88 Ill. 284, or that it was lager beer, as ruled in Bandalow v. The People, 90 Ill. 218, the instruction would have been proper, and the conviction right. But such was not the case. The following authorities are in point on the question involved. Lathrop v. The State, 50 Ind. 555; Klare v. The State, 43 id. 435; The State v. Chappel, 116 Mass. 7; Commonwealth v. Blas, id. 56; The State v. Starr, 67 Me. 242; The State v. Wall, 34 id. 165; The State v. Riddle, 54 N. H. 379; Kins v. The State, 79 Ind. 488.

In the last case cited, under an indictment which charged that defendant unlawfully gave to a person under the age of twenty-one years, intoxicating liquor, where the gift was proven to be “beer, ” quoting from a former case the court said: “Beer may be, but is not, necessarily, a malt liquor, and may not be intoxicating. It devolves on the State, therefore, to prove that the beer sold was either a malt liquor, or that it was in fact intoxicating liquor. Neither of these facts could be presumed, or judicially recognized. ” The other cases cited, will, also, upon examination, be found to be in harmony with the views we have expressed.

The rule here indicated imposes no hardship upon the prosecution. If the beer sold in this ease was malt or intoxicating liquor, that fact might have been proven by a single question propounded to the witness on the stand. Under the evidence, as shown by the record, we think the first instruction given for the People was calculated to mislead the jury.

The judgments of the Appellate and circuit courts will be reversed, and the cause remanded.

Judgment reversed.

Scott, C. J., and Sheldon, J., dissenting.