author: Mr. Chief Justice Scholfield

text:
    The Farmers’ National Bank of Bushnell v. Theodore F. Sperling.

      Filed at Springfield

      March 30, 1885.

    1. Appeal—without regard to amount involved—in suit to remove cloud upon title. On bill to set aside a sheriff’s sale of land on execution as a cloud upon a title, and to enjoin the making of a sheriff’s deed, an appeal lies to this court from the Appellate Court, where the decision of that court is final, without regard to the amount in controversy.
    2. Settlement—payment—of a transaction amounting to payment. A and B owning a tract of land as tenants in common, borrowed $3500, to secure which they gave their joint note, and a mortgage on the land. B took of this amount $800 for his individual use, and gave A his note for §800. Afterward, B sold and conveyed his interest in the land to A for $2000, subject to the incumbrance thereon of $3500, which A was to pay, and A, in making payment of the $2000, turned in B’s note of $800 as part payment. After this, a bank recovered judgment against B, and had the land sold, and on bill by A to set aside the sale, claimed that A still owed B one-half of the $800 note: Held, that the settlement of the parties, being in good faith, was conclusive, and that the entire purchase money had been paid by A.
    3. Parties—in chancery—on bill to set aside a sheriff’s sale as a cloud on title. On bill by the owner of land to set aside a sale of it on execution, against a former owner and another, as a cloud upon title, the defendants in the execution, though proper parties, are not indispensable parties, where no decree is entered affecting their interest, such as, vacating the entry of satisfaction of the judgment against them.
    4. Same—time to object for want of proper parties. Where the parties omitted in a bill in chancery are not indispensable to a decision of the case upon its merits, it will be too late to make the objection at the hearing that they are not made parties; but when the rights of the parties not before the court are intimately connected with the matter in dispute, so that a final decree can not be made without materially affecting their interests, the objection may be taken at the hearing, or on appeal or error.
    5. Execution sale oe land—in case no title passes—rights of the plaintiff in execution—how far the rule of caveat emptor applies. A plaintiff in execution is not in all cases, as a matter of right, entitled to have a satisfaction and levy of an execution vacated, merely because no title passed at the sale. In general, the doctrine of caveat emptor applies to such sales; and although the fact that the defendant in execution had no title, may, when unexplained, justify a court of equity in vacating the levy and satisfaction on the ground of mistake, yet that court would not interfere where it was clearly shown that the plaintiff in the execution had willfully, with full knowledge of all the facts, caused a levy upon the property of a person other than the defendant in the execution.
    6. Notice—possession of land as notice of occupant’s rights. Where one tenant in common of land, while in possession of the whole, paying rent to his co-tenant, purchases the interest of the latter, and takes a deed therefor, which he fails to record until after the recovery of a judgment against his grantor, his continuous possession of the land will operate as notice to the judgment creditor of his rights as purchaser, and he may have a sale of the undivided half thereof set aside as a cloud upon his title.
    7. Bill in chancery—sufficiency of allegation of possession. A bill to set aside a sale of land on execution, on the ground of notice to the judgment creditor of the complainant’s purchase of the premises before the recovery of the judgment against the former owner of an undivided half thereof, alleged that the complainant took possession of the land several years before the recovery of the judgment, when he rented of the owner of the other half interest, and that he had been in the sole and exclusive possession of the property ever since; and in another place, that the judgment creditor had notice of his possession: Held, that the allegation of notice of the complainant’s rights by possession was sufficient on error.
    Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of McDonough county; the Hon. S. P. Shope, Judge, presiding.

      Messrs. Wheat & Imes, and Messrs. Tunnicliff & Bacon, for the appellant:
    The bill charges notice only at the time of the sale. The notice, to avail, must be before or when the judgment was recovered. Massey v. Westcott, 40 Ill. 160.
    The records here showing title in Theodore and Abram B. Sperling, jointly, and the possession of Theodore being consistent with his own, and not inconsistent with Abram’s, title, was no notice to any one of his having purchased Abram’s interest. Stone v. Cook, 79 Ill. 424; Fassett v. Smith, 23 N. Y. 252; Richardson v. Haynes, 1 La. Ann. 286; Bodrean v. Bergeson, 4 id. 84; Rodgers v. Hussey, 36 Iowa, 664; Reynolds v. Ruckman, 35 Mich. 80; Atwood v. Bearst, 47 id. 72; Wade on Law of Notice, secs. 297, 298; Emmons v. Murray, 16 N. H. 286; Plumer v. Robertson, 6 S. & B. 179; Palmer v. Bates, 22 Minn. 522.
    As to when notice to an agent, trustee, etc., affects his principal, see Fairfield Savings Bank v. Chase, 72 Maine, 226; McCormick v. Wheeler, 36 Ill. 114; Choteau v. Allen, 70 Mo. 290; Ford v. French, 72 id. 250; Horseman v. Girard Association, 81 Pa. St. 256; Pringle v. Dunn, 37 Wis. 449.
    Appellee failed to pay the full purchase money to the extent of $400, and interest thereon.
    The defendants in the execution were necessary parties. Borer on Judicial Sales, secs. 1145-1147; Prentice v. Kimball, 19 Ill. 320.
    Messrs. Neece & Blazer, for the appellee:
    As to an appeal lying to this court, see section 90 of the Practice act; section 8 of the Appellate Court act; Sedgwick v. Johnson, 107 Ill. 385; Trustees of Schools v. Potter, ,108 id. 442; Umlauf v. Umlauf, 103 id. 657; Talcott v. Schule, 95 id. 201; Baber v. Railroad Co. 93 id. 342; Walker v. Malin

      & Co. 94 id. 596 ; Carlin v. Fox, 98 id. 146; Peck v. Herrington, 104 id. 88.
    Open and notorious possession of land is sufficient to put subsequent purchasers and incumbrancers upon inquiry as to the rights of the occupant. Keys v. Test, 33 Ill. 316; Truesdale v. Ford, 37 id. 210; Reeves v. Ayers, 38 id. 418; DeWolf v. Pratt, 42 id. 198; Warren v. Richmond, 53 id. 52; Wade on Law of Notice, 116, 120.
    The objection for want of parties is for the first’ time raised in this court upon appeal, when, we think, it was the duty of appellant, if such is the case, to have raised that question in the court below, by either demurrer, plea or answer. If any defect such as is urged, does in fact exist, it is manifest upon the face of the bill, and hence should have been raised by demurrer interposed for that purpose. • Story’s Eq. PI. sec. 75; 1 Daniell’s Ch. Prac. 285, 286; Conwell v. Watkins, 71 Ill. 488; Allen v. Woodruff, 96 id. 11.
    ’ The omission of the judgment debtors as parties could not prejudice appellant, and as their rights were not affected by the decree, they were not indispensable parties. Manf. Co. v. Daggett, 84 Ill. 557; Walsh v. Wright, 101 id. 178; Story’s Eq. PI. secs. 76, 77, and notes.
    The principle of caveat emptor applies to judicial sales, unless the party is misled by fraud. Finley v. Mayer, 42 Ill. 350; Bishop v. O’Connor, 69 id. 431; Roberts v. Hughes, 81 id. 130; Vanscoyoc v. Kimler, 77 id. 151; Holmes v. Shaver, 78 id. 578; Bassett v. Lockard, 60 id. 164.
    The principle is well established that a levy on personal property under a fi. fa. is prim,a facie a satisfaction of the debt. Trenary v. Cheever, 48 Ill. 28; Smith v. Hughes, 24 id. 270.
    Abram B. was to pay the whole of the $800 to the Bulls, and each of them the balance, $2700, so that Abram’s note properly paid the amount it called for.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

Theodore F. Sperling and Abram B. Sperling in the fall of 1868 purchased the north-west quarter of section 9, township 7, north, range 3, west, in McDonough county, of Charles Chandler. In the spring of 1869 they entered into possession, and commenced making improvements thereon, and they continued to occupy and improve and cultivate it, as tenants in common, until in 1873, when Abram B. rented his undivided interest therein to Theodore F., and thereafter Theodore F. paid Abram B. rent for such interest, until April, 1877, when Abram B. sold his undivided interest in the tract to Theodore F. Since that time Theodore F. has been in the sole and exclusive possession of the entire tract, cultivating and claiming it as his own. Charles Chandler conveyed the tract to Theodore F. and Abram B. by deed dated June 15, 1876, which was recorded in the proper office on the same day. Abram B. conveyed his undivided interest in the tract to Theodore F. by deed acknowledged on the 18th of April, 1878, and delivered about the 1st of May, 1878, but which was not recorded in the proper office until the 15th of January, 1880.

The Farmers’ National Bank of Bushnell obtained a judgment in the McDonough circuit court, against Abram B. Sperling and John B. Sperling, on the 12th of September, 1879, for $515.66, and costs of suit. Execution was issued on that judgment on the 4th of October, 1879, and it wras subsequently levied on the north-west quarter of section 9, township 7, north, range 3, west, in McDonough county. On the 20th of March, 1880, the tract was sold by the sheriff, by virtue of this levy, to the bank, and a certificate of purchase was issued to it, which was recorded on the 3d of May, 1880. The decree of the circuit court sets aside this sale, upon the ground that Theodore F. Sperling was the sole owner of the land by virtue of the deed from Abram B. to him, and that the bank is chargeable with notice of this ownership, by reason of his possession of the tract at and before the time it obtained its judgment.

A motion was made to dismiss the appeal upon the ground that there is no question of law certified by the Appellate Court, and the amount in controversy is less than $1000. The motion is overruled. The bill is not for the recovery of any sum of money, but simply to set aside a sale as a cloud upon a title, and to enjoin the making of a deed. In such cases an appeal lies directly to this court from the Appellate Court, when the decision of that court is final. Peck v. Herrington, 104 Ill. 88; French v. Gibbs, 105 id. 523.

The grounds upon which a reversal of the decree below is sought, necessary to be noticed, in the view we take of the case, are three: First, the proof does not show the payment of the purchase money, in full, by appellee, before appellant’s judgment was obtained; second, Abram B. and John B. Sperling were indispensable parties to the bill; and third, the possession of Theodore F., under the circumstances, was not constructive notice that he was sole owner of the property. In our opinion, neither of these grounds is tenable.

First—Whether the payment of the purchase money was in fact made by appellee, in full, before appellant’s judgment was obtained, depends entirely upon the veracity of Abram B. and Theodore F. They swear that it was. Counsel for appellant do not claim to have successfully impeached them, but only that on their own statement $400—one-half the amount of a certain $800 note—is unpaid. The price Theodore F. was to pay Abram B., they say, was $2000, subject to incumbrance. They had borrowed of the Bulls, of Quincy, $3500, for which they gave their joint promissory note, and they secured it by a deed of trust on the tract. Of this $3500, in fact only $2700 was for the joint benefit of Abram B. and Theodore F. The other $800 was for the individual benefit of Abram B., only. He gave his individual note to Theodore F. for this $800, and when he sold his interest to Theodore F., he took it up, as a payment of so much of the $2000. Appellant’s position is, inasmuch as both signed the $3500 note, Abram B. should only be liable, and therefore should only have given his note to Theodore F. for one-half the $800,— in other words, that he is liable on the note for one-half, and in getting the whole of the $800 he is only getting, to that extent, one-half that he is not liable for. This, as a mere statement of the apparent position of the parties, on the face of the papers, is entirely correct; and if Abram B. had paid one-half of the $3500 note before he sold his interest to Theodore F., or if, as between them, he had continued his liability thereon, he would have remained liable to Theodore F. for only one-half the $800. But it was competent for them to agree, as they say they did agree, to settle upon the basis of Theodore F.’s liability for the whole note,—if he had paid it, recognizing that fact, and if he had not paid it, providing that he should do so,—and in that event it would stand just as if they had jointly borrowed $2700, payment of which was made or assumed by Theodore F., and Abram B. had individually borrowed $800, payment of which was made or assumed by Theodore F., in which case it would be clear to the apprehension of all that Abram B. would owe Theodore F. the whole of the $800, as for so much money paid to his use. The parties are not entirely lucid in their explanations, but we think the fair conclusion, from their evidence, is, that the $800 note was accepted in payment of that amount of the $2000, upon the hypothesis, as between themselves, that the incumbrance proper upon the land, subject to which the purchase was made, was to be regarded as only $3500, less the $800 received by Abram B., (or $2700,) and that the whole amount had been or was to be paid by Theodore F.,—or, to state it a little differently, that Abram B. was to be considered as having paid $800 on the $3500 which he had received from Theodore F., in part payment of the $2000. Whether, when the $800 note was given, it was intended as a mere obligation of indemnity, or in consideration that, as between the parties, Theodore F. should alone be liable on the $3500, is, perhaps, not very important, since, when Abram B. sold his interest to Theodore F., so long as the consideration was adequate there was no objection to his taking for his interest what he pleased, and they might, as between themselves, in speaking of the incumbrance that was to be assumed by Theodore F., treat it as only extending to or embracing the money actually borrowed to extinguish a prior incumbrance on the land,—that is, $2700. So long as they understood each other, and no mistake was made, others could not object that they had miscalled terms, or come to inaccurate conclusions. They swear no mistake was made, and it is not satisfactorily shown they are under misapprehension, or testify willfully false.

Second—This objection was not made in the circuit court. No decree was sought or rendered against Abram B. Sperling or John B. Sperling. They can not, therefore, be affected by the decree.- (Whiting v. Bank of United States, 13 Pet. 1.) It is impossible to conceive why the court can not decree, as between the purchaser of land at a sheriff’s sale and the owner of the land, in regard to the effect of the sale, without having the defendant in execution in court. If it were sought thereby to vacate the satisfaction of the execution and the levy, undoubtedly the defendant in execution would be a necessary party, because the decree would directly affect him; but a plaintiff in execution is not, in all cases, as a matter of right entitled to have a satisfaction and levy of an execution vacated merely because no title passed at the sale. In general, the doctrine of caveat' emptor applies to such sales, and although the fact that the defendant in execution had no title to the property, might, unexplained, be regarded as sufficient evidence of mistake to justify a court of equity in rescinding the sale and vacating the levy, and any satisfaction produced by the sale, yet cases may be conceived of where courts of equity would not do so,—as, for instance, a court of equity would hardly interfere in such a case where it was clearly made to appear that the plaintiff in execution had proceeded willfully, with thorough knowledge of all the facts, and caused an execution to be levied upon the property of another, in regard to the title to which there was no reasonable pretence that the defendant in execution had any claim. A court of equity will not permit itself to be used as a means of merely harassing and annoying individuals, or of gratifying the caprices and variable humors of parties. And in any case, a plaintiff in execution is not obliged to have a levy or satisfaction of an execution vacated, although he may have derived no title by his purchase at the sale. If he does not choose to do so, it can not concern the party whose property has been illegally sold, but who has recovered his property. The latter is entitled to have his sale set aside, and his interest in the matter there ceases. So, here, when the bank was brought into court, it might have objected that the defendants in execution should be brought before the court, so that the rights of all should be settled in a single proceeding; but we are unable to perceive why it might not waive that objection, and contest with the appellee the only question between them,—namely, whether his land could be lawfully sold on execution,—and contest the question of vacating the levy and the satisfaction of the execution, with the defendants in execution, afterwards. We concede the defendants in execution would have been proper parties; but were they necessary (i. e., indispensable) parties ? The rule is familiar, and was laid down in Prentice v. Kimball, 19 Ill. 323, that where the parties omitted are not indispensable to a decision of the case upon its merits, it will be too late to make the objection at the hearing; but where the rights of the parties not before the court are intimately connected with .the matter in dispute, so that a final decree can not be made without materially affecting their interests, the objection may be taken at the hearing, or on appeal, or on error. In that case the satisfaction of the judgment was vacated-without defendant therein having been made a party to the proceeding to vacate, and, of course, if the vacation was valid, it directly affected him to the amount of the judgment ; while here, we have seen, the omitted parties can not be affected by the decree. It has not been established by any authorities referred to by counsel, (and, we think, can not be, by respectable authorities,) that a sale can not be set aside unless the levy of the execution, and any satisfaction thereof produced by the sale, be vacated at the same time and in the same proceeding; and unless this can be done, the most that can be said is, these omitted parties would have been proper parties, but they are not indispensable.

Third—This court has held, in opposition to the rule quoted by counsel for appellant from Wade’s Law of Notice, secs. 297, 298, and Emmons v. Murray, 16 N. H. 386, that the actual, open and visible possession of real estate is constructive notice to persons purchasing it, of whatever rights the possessor then has in the land. In Coari v. Olsen, 91 Ill. 273, we held, in obedience to what we understood to be the common law, and upon the faith of authorities therein referred to, that where a tenant changes his character by agreeing to purchase, his possession amounts -to notice of his equitable title as purchaser. In Haworth v. Taylor, 108 Ill. 275, we held that the possession of a tenant is constructive notice of the actual title of the landlord at that time, although that title was acquired subsequent to the time the landlord leased to the tenant. It was there said: “As at the date of the lease Taylor was not the owner of the land, but acquired title subsequently, on November 13, 1865, it is contended that the notice from the tenant’s occupancy was notice, only, of Taylor’s (the landlord’s) rights at the time of the making of the lease, and not of his rights at the time of Haworth’s deed,—December 26, 1866. We do not concur in this view, although the authority cited ’(Emmons v. Murray, 16 N. H. 398,) lends somewhat of countenance to it. We regard the doctrine, as derived from the decisions of this court, to be, that where one purchases land of which another is at the time in the actual, open and visible possession, such possession is constructive notice to the purchaser, of all rights whatever of the possessor in the land at the time of the purchase. ” This rule binds the bank with notice, by Theodore’s possession at the time judgment was obtained, of the title he then actually had.'

Objection is urged that the bill does not, with sufficient certainty, allege that Theodore had possession when the judgment was rendered. The bill is inartistically framed in this respect; hut it is alleged that Theodore took possession in 1873, when he rented of Abram, and that he has been in the sole and exclusive possession of the property ever since, and in another place it is alleged that the bank had notice of his possession. This, we think, on error, is sufficient. No demurrer was filed to the bill on this account, and the objection was not otherwise urged at the hearing.

The decree is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Samuel C. Hill et al. v. George H. Blackwelder.

      Filed at Springfield

      March 30, 1885.

    1. Special constable—to serve summons in civil suit. A justice of the peace can not make a lawful appointment of a constable pro tern, to serve “ a summons or other personal notice in a civil suit, and the service of summons by such a constable will fail to give the justice of the peace jurisdiction of the person of the defendant.
    2. Estoppel—the general rule. Where one, by his words or conduct, intentionally causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter hi? own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time, and the Statute of Frauds will have no application to defeat the application of this rule.
    3. Same—to deny the validity of a judgment under which a sale was made. Where the defendant in a judgment rendered by a justice of the peace, which is made a lien upon real estate by filing a transcript thereof in the office of the clerk of the circuit court, induces a creditor other than the plaintiff in the judgment to make a redemption under such judgment from prior sales under execution, and to bid off a tract of land previously sold to hold as a security and for the benefit of the former, such party, and those claiming under him with notice of the title thus acquired, will, in a court of equity, be estopped from defeating such title by showing that the judgment of the justice of the peace was void for want of jurisdiction over the person of such defendant.
    . 4. Same—whether a fraudulent intent is necessary to the application of the rule. It is not necessary to the application of an equitable estoppel that there should be a fraudulent intention on the part of the party causing another to act upon the belief of the existence of a certain state of fact, and thereby alter his position. It is enough if there would be a fraudulent effect from allowing the party to set up a claim inconsistent and at variance with his former acts and declarations, and that a fraud would thereby be perpetrated on the rights of the person thus induced to alter his position.
    5. Same—diligence required of party sought to be influenced by false representations—as, in the examination of the records as to the facts and title. Where the foundation of the estoppel is in silence and omission to give notice of one’s rights, the party relying upon the same must not have had the means of ascertaining the true state of the title by reference to the public records. But this rule does not apply to a case where the land owner has actively encouraged and induced the injured party to act.
    6. Same—want of knowledge on the part of one who induces a certain line of action in another, as to the existence of facts. Where a party, by his representations, or otherwise, actually encourages and induces another to make a redemption from a judicial sale of his land under a transcript of a judgment of a justice of the peace against him, and become the purchaser of the land, he, and those claiming under him with notice of the rights of. such purchaser or his grantee, will be estopped from defeating the title thus acquired by showing that the service of the summons on him was void, as being by one not authorized to serve the same, although that fact may not have been known to him at the time he so induced the other party to make the redemption.
    7. Description—“west side” of a tract, of land—whether sufficiently certain. Where a debtor owns ten acres on the west side of a forty-acre tract, being a quarter of a quarter-section, a levy upon the same, described as the “west side of the N. E. ¿ of the H. W. £ of seo. 23,” etc., is not void for uncertainty, it meaning the west half of the tract, which includes the ten acres off the west side thereof.
    8. Execution—equity of redemption—whether subject to levy and sale. Where a judgment debtor’s interest in a tract of land is sold under a valid levy under a valid judgment and execution, his right to redeem from such sale is not subject to levy and sale under another execution.
    9. Inubing of subsequently acquired title. By statutory provision, a conveyance of land by one not having title is made valid to pass an after acquired title, the same as if the grantor had the legal estate at the time of the conveyance; but this rule does not extend to a sheriff’s deed made upon an execution sale.
    10. So where land of a debtor is sold on execution, and is again sold under a second execution within twelve months, a redemption by a judgment creditor from the first sale will not operate to pass title to the purchaser at the second sale, but the title will pass to the purchaser at the sale under the redemption.
    Appeal from the Circuit Court of Montgomery county; the Hon. Jesse J. Phillips, Judge, presiding.
    Messrs. Miller & McDavid, and Mr. J. M. Truitt, for the appellants:
    As a general rule a party will be concluded from denying his own acts or admissions which were expressly designed to influence the conduct of another, and did influence it, when such denial will operate to the injury of the latter. Kinnear y. Mackey, 85 Ill. 96; Heiner v. Vandolah, 57 id. 520.
    It is not essential there should be intentional fraud. It is sufficient if it will result from the evidence he attempts to set up. Kinnear v. Mackey, 85 Ill. 96; Flower v. Elwood, 66 id. 447; Chandler v. White, 84 id. 435.
    z It has been held by this court that one who recommended a title to a purchaser could not be afterward heard to question it. Winchell v. Edwards, 57 Ill. 41; Jeneson v. Jeneson, 66 id. 259 ; Bradley v. Luce, 99 id. 234; Curyea v. Berry, 84 id. 600.
    The description of the land in the levy on the first execution as “west side,” etc., is sufficient. Colcord v. Alexander, 67 Ill. 581; Billings v. Kankakee Coal Co. id. 489.

      The second levy and sale were void for the reason that the debtor had no title remaining to be sold.
    Messrs. Lane & Cooper, for the appellee:
    The judgment in favor of Buford & Field was void, and so were all proceedings under it. Evans v. Pierce, 2 Scam. 469; Johnson v. Baker, 38 Ill. 99; Borders v. Murphy, 78 id. 81.
    On the redemption the title to the ten acres became subject to the sale made by the Loan and Trust company, and the title to the forty acres became absolutely vested in Harris.
    The description of the levy on the first sale of the ten-acre tract was void for uncertainty. Schaumtoeffel v. Belm, 77 Ill. 567; Haskins v. Haskins, 67 id. 446; Hughes v. Streeter, 24 id. 650.
    Hermann on Estoppel, 415, says: “By the application of this principle with respect to the title to real property it must appear, first, that the party making the admission, by his declaration or conduct was apprised of the true sztate of his own title; second, that he made the admission with the intent to deceive, or with such culpable and careless negligence as to amount to constructive fraud; and third, that the other party was not only destitute of all knowledge of the true state of the title, but of all means of acquiring such knowledge. ” See, to the same effect, Bigelow on Estoppel, 437. Nearly the same language is used in People v. Brown, 67 Ill. 439, and Dinet v. Eilert, 13 Bradw. 99, and cases cited.
    On the doctrine of estoppel, see Hermann on Estoppel, 421, 439; Bigelow on Estoppel, 438.
    To show that under the Statute of Frauds verbal statements of the parties could not operate as an estoppel, reference is made to Hermann on Estoppel, 439; Bigelow on Estoppel, 448; Brightman v. Hicks, 108 Mass. 246; Aherend v. Obiome, 118 id. 268; Parker v. Barker, 2 Metc. 431; Henshaw v. Bissell, 18 Wall. 271; Butcher v. Buchanan, 17 Iowa, 81.

      There can be no estoppel if the party had notice of the title, as he had from the records. Bigelow on Estoppel, 467; Hermann on Estoppel, 428; Morris v. Hugh, 38 Ill. 155; Hill v. Epley, 31 Pa. 331; Krouff v. Thompson, 4 Harr. 361; Wood v. Griffin, 46 N. H. 237; Mills v. Graves, 38 Ill. 465.
    The doctrine of equitable estoppel is based on a fraudulent purpose and a fraudulent result. Dorlarque v. Cress, 71 Ill. 380; Chandler v. White, 84 id. 438.
    The Buford & Field judgment being void, no rights could be acquired under it. Borders v. Murphy, 78 Ill. 81; Mulvey v. Carpenter, id. 581; Johnson v. Baker, 38 id. 99.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a decree of the Montgomery circuit court dismissing a bill in chancery, brought by Dresser and Hill, against Blackwelder, to enjoin the prosecution of an action of ejectment by the latter against the two former, to recover possession of a certain forty-acre and a certain ten-acre tract of land. Both parties claim title from a common source,—James A. Harris, deceased. The record shows that Harris was indebted to divers persons who had recovered judgments against him, among whom were Buford & Field, who recovered a judgment against Harris before a justice of the peace on September 8, 1874, a transcript of which judgment, to make it a lien on real estate, was filed in the clerk’s office of the circuit court, as provided by the statute, September 9, 1874. There had been several successive sales and redemptions of the lands in question, under different judgments against Harris, the last of said judgments next prior to that of Buford & Field being one of Weil & Bro., which last judgment, together with all the prior judgments and redemptions, amounted to $829.49. To redeem from the sale under the execution of Weil & Bro. against Harris, Dresser paid'said sum of $829.49, and afterwards, at the sheriff’s sale under the execution upon the Buford & Field judgment, on November 13, 1875, Dresser became the purchaser of the lands, paying the further sum of $59.49. Dresser received a sheriff’s deed for the lands, and afterward sold and conveyed them to Hill. This constitutes Hill’s claim of title to the lands. Harris died in September, 1877, and the administrator of his estate subsequently, by virtue of an order of the county court of the county, sold the forty-acre tract to Blaekwelder for the sum of $25. Neither Dresser nor Hill -was made a party to the proceeding in which such order was made. This is Black-welder’s claim of title to the forty-acre tract. His claim of title to the ten-acre tract is different, and will be afterward spoken of.

The alleged defect in Hill’s title to the forty acres is, that the judgment in favor of Buford & Field, against Harris, before the justice of the peace, under execution upon which Dresser bought the lands at sheriff’s sale, was void for want of jurisdiction of the person of Harris, the summons in the suit having been served upon Harris by a special constable, and there having been no appearance by Harris. It is expressly decided in Gordon v. Knapp, 1 Scam. 489, that a justice of the peace can not appoint a constable pro tem to serve a o summons or other personal notice in a civil suit.

The bill sets up the claim of an estoppel in pais against the defendant to make the above objection to the Buford & Field judgment, as arising from Harris’ inducing Dresser to make the redemption and purchase under the judgment which he did, and the object of the bill is to have such estoppel declared and enforced.

The case made by the proofs is, that Dresser was the presidént of a certain bank which held a judgment in its favor against Harris and one Hunter, rendered upon a note against the two latter, Hunter being a surety on the note; that Hunter came to Dresser and stated that Harris had lands in Montgomery county, and that if the prior liens were paid off they could be sold for enough more than the liens to protect Hunter; that afterward both Harris and Hunter came to Dresser, and Harris requested Dresser to aid him by paying off the liens on the land, saying that Dresser could hold the lands, which would make him secure for the money he would advance, and then Harris thought he could sell the lands for enough more to protect Hunter and make the bank judgment out of the lands. Harris told Dresser to see Lane, Harris’ attorney; that he would see that the title was good, and that whatever Lane said, would be all right. Dresser afterwards did see Lane, who told Dresser the title was good. Under the above arrangement, and at Harris’ request, Dresser advanced the money ($829.49) to make the redemption, under the Buford & Field judgment, of the lands from the last preceding sale under the judgment of Weil & Bro., and bought the lands at sheriff’s sale November 13, 1875, under execution upon the Buford & Field judgment, paying $59.41 more. Some two or three years after this, Harris came to Dresser and told him he would have to sell the lands and get his money out of them; that he (Harris) had been trying to find a purchaser, but could not find one. Dresser accordingly sold the lands to Hill, giving a warranty deed, and getting about what the land cost him, with the interest added.

The criticism is made upon this proof, that it does not show that this particular judgment of Buford & Field was in the view of the parties, that redemption was to be made under that judgment, or that the lands were to be bought by Dresser under that specific judgment. The evidence does fail in specific mention of this judgment; but it shows that Dresser made the purchase upon the execution under the previous arrangement with Harris, and at his request, and Harris’ action subsequent to the sale was in recognition of the same fact. We think the whole evidence should be viewed as establishing that Harris requested Dresser to make the redemption and purchase under the judgment of Buford & Field against Harris, and we are of opinion it presents a clear case of an equitable estoppel. Dresser did not, of his own motion and for his own benefit, make the redemption and bid off the lands under the execution, but he was sought out by Harris and Hunter, and was by them requested and induced to do what he did for their benefit, in having the excess above the execution sale for which it was believed by Harris he could afterwards make sale of the lands. Any such excess would have gone in payment of the judgment against Harris and Hunter, and it being in favor of the bank, it may be said the bank would have thereby derived a benefit. Nothing appears but what Hunter was entirely solvent, and the judgment collectible from him, and the evidence does not show that the benefit of the bank in getting satisfaction of its judgment was at all a moving consideration with Dresser, and what he did appears to have been but a friendly act of accommodation to Harris and Hunter. After thus inducing Dresser to advance a large sum of money, under the judgment of Buford & - Field against Harris, for the redemption of the lands, and to purchase the lands under execution upon the judgment, for Harris afterwards to say that this judgment against himself was void for want of jurisdiction of his person, and for that cause take the lands away from Dresser, and cause him to lose the money he had expended, would be a gross breach of good faith, and manifestly inequitable and against conscience. Harris’ whole conduct was an implied representation that this judgment against him was a valid judgment. Notwithstanding the summons in the suit was not served upon him by an authorized officer, he might be content for the judgment to stand, and could waive the objection that the summons was not served by an authorized officer, and his conduct should be taken as a waiver of that objection. Harris, by his conduct, caused Dresser to believe that the judgment of Buford & Field was such an one that under it redemption could be made from a prior sale, and that under it a sale of land on execution could be made which would pass title,—that is, that it was a valid judgment,—and he induced Dresser to act on that belief, and to alter, to his prejudice, his own previous position, and Harris should be estopped from averring against Dresser, or Hill, the purchaser from him, that the judgment was not a valid one. “Where one, by his words or conduct, willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as'to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time. ” Pickard v. Sears, 6 A. & E. 469. And see Hefner v. Vandolah, 57 Ill. 523; Kinnear v. Mackey, 85 id. 96, and authorities cited.

It is objected, as against any estoppel, that the arrangement between Harris and Dresser, made prior to the sale, was within the Statute of Frauds, and that there can be no verbal estoppel by a contract invalid under that statute. We suppose the notion of the Statute of Frauds affecting the case comes from Harris saying that Dresser could hold the lands which he should buy under the execution, which would make him secure for the money he would advance, and regarding the bill as based upon such verbal promise. But the bill is not at all founded upon this,—to enforce any agreement that Dresser might hold the lands as security. The agreement to so hold the lands was not one in favor of Dresser, but for the benefit of Harris, qualifying Dresser’s holding of the land, making it to be held as security,—not absolutely. The object of the bill is to estop Harris from saying that the judgment was void because of his conduct in causing Dresser to suppose the judgment was a valid one, and inducing him to act as he did under it upon that supposition. What was said as to holding the lands as security, was of force only as part of the conduct holding out the judgment to be valid. We do not consider the Statute of Frauds as having any application to the case.

It is said there can be no estoppel if the element of fraud is wanting, and that .there was here no fraudulent intention on the part of Harris. No fraudulent intention is required. It is enough if there would be a fraudulent effect from the evidence attempted to be set up. To allow Harris to invalidate this redemption and execution sale, as he here seeks to do, would be to admit the" perpetration of a gross fraud and injustice upon Dresser. To prevent this, arises the equitable estoppel.

It is said that a recourse to the records would have disclosed the fact that the service of the summons in the suit of Buford & Field against Harris was by a special constable; and it is insisted that to enable one to set up the title by estoppel, with respect to real estate, he must, at the time he took the title, have been without the means of ascertaining the true state of the title by reference to records. We understand that rule, and the cases cited by appellee’s counsel in its support, as applying only in cases where the foundation of the estoppel is in silence, and omission to give notice of one’s right, and' not in a case where the land owner has actively encouraged and induced the injured party to act,— that they do not apply to such a case as is presented by this record. Knouf v. Thompson, 4 Harris, 361.

It is alleged further, that for the application of this principle with respect to title to real property, it must appear that the party 'making the admission, by his declarations or conduct, was apprised of the true state of his own title. It does not appear that Harris knew the summons in the ease of the Buford & Field judgment was served upon him by an unauthorized officer, and so that the judgment was invalid. This necessity of . knowledge of the state of the title we take to apply, as above stated, to the case of silence and acquiescence, and not to a case of active encouragement and procurement to make a purchase, as here. We hold that Harris’ conduct was, in effect, a representation that the judgment was a valid one against him, and whether he did or not know it to he invalid, we regard as immaterial. He ought to have known the facts before inducing Dresser to act, and should be taken as having known them. Dresser had the right, without further inquiry, to rely upon the representation of Harris, and act upon the assumption that Harris was acquainted with his own title, and that his representations were true. The consequences were the same to Dresser whether Harris knew or was ignorant of the invalidity of the judgment. The doctrine of equitable estoppel does not depend, as before observed, upon any fraudulent design, but it is applied to avert injurious consequences from having been misled by the conduct of another. See Chapman v. Chapman, 59 Pa. 214; Miller v. Miller, 60 id. 16; Storrs v. Barker, 6 Johns. Ch. 166; Favill v. Roberts, 50 N. Y. 222; Tilton v. Nelson, 27 Barb. 595 ; Wells v. Pierce, 27 N. H. 503; Wilcox v. Iowa Wesleyan University, 32 Iowa, 367; 1 Story’s Eq. Jur. secs. 193, 387.

Hill was in the possession of the forty-acres at the time of Blackwelder’s purchase thereof at the administrator’s sale, and so the latter stands affected with notice of all Hill’s equitable right acquired by his purchase from Dresser, and stands in no better position than would Harris himself. As respects the ten-acre tract, Dresser’s claim of title thereto is the same as that to the forty acres; but defendant’s claim of title is from another source than purchase at a sale by the administrator of Harris, as he claims the forty-acre tract.

On May 14, 1874, there were two judgments rendered in the circuit court of Montgomery county in favor of the Montgomery County Loan and Trust Company, against Harris, for $648.60, and $1081, respectively. On June 9, 1874, executions were issued on these judgments and levied on the forty-acre tract in question, and on “West side of N. E. \ of N. W. jr see. 23,” etc., the description of the ten-acre tract in controversy being “ten acres off of the west side of N. E. J of N. W. ¿ sec. 23, ” etc. On these executions the lands levied on were sold at sheriff’s sale on September 8, 1874, to the plaintiff in executions, for $200 indorsed on one execution, and $200 indorsed on the other. It was admitted that Wm. J. Glenn, as judgment creditor of Harris, redeemed from this sale, and that James H. Marshall, James Blaky & Co., J. Weil & Bro., and Buford & Field, each as judgment creditors, made consecutive redemptions in the order named, except the defendant insists that Buford & Field had no lawful judgment against Harris, and so were not judgment creditors, and could not redeem. Two alias executions on these two judgments in favor of the Montgomery County Loan and Trust Company, against Harris, were issued December 22, 1874, and levied, with other lands, on ten acres of land, described as follows: “Ten acres off of the west side of the N. E. ¿ of N. W. J sec. 23,” etc., and on February 8,1875, the lands so levied on were sold at sheriff’s sale, upon the executions, to the plaintiff in executions, which assigned its certificate of purchase to one Lane, to whom a sheriff’s deed of the last mentioned lands was executed, and Lane afterwards sold and conveyed the same lands to Blackwelder, the defendant, who in this way derives his claim of title to the ten-acre tract.

It is seen from the above, that there was a sale of these lands under the judgment of the Montgomery County Loan and Trust Company against Harris, on September 8, 1874, and that on February 8, 1875, five months after, there was a second sale of the lands under alias executions upon this same judgment of the Montgomery County Loan and Trust Company. The justification set up for this second sale is, that the first sale was void by reason of the uncertainty of description as respects the ten acres. The description under which the first levy and sale were made was, “West side of N. E. J of N. W. J sec. 23,” etc., and that at the second sale being, “Ten acres off of the west side of the N. E. of N. W. J sec. 23, ” etc. Under the holding in Winslow v. Cooper, 104 Ill. 235, that the “north side” of a lot of land means the “north half” of the lot, (following Chiniquy v. The People, 78 Ill. 570, that the “east end” of a tract of land means the “east half” of the tract,) it must be taken that the “west side of N. B. ¿ of N. W. described the west half of the quarter quarter-section, and so would be a certain description, and as the greater includes the less, it included the ten acres that Harris owned on the west side of the tract. The first sale, then, not being held void for the uncertainty of description of the property sold, it was a valid sale, and there afterward remained in the judgment debtor only a right of redemption of the property. The sale of the same property five months afterwards, under execution against the same judgment debtor, was invalid. At the time of the second sale the only interest which the judgment debtor had in the property was a right of redemption; but the right of redemption of a judgment debtor is not subject to be levied on and sold by virtue of another execution. (Merry v. Bostwick, 13 Ill. 398; Watson v. Reissig, 24 id. 281.) . Such a sale, as said in the latter case, is void. The defendant’s claim of title, then, to the ten acres, being under said second sale, fails, and the title remains in complainant Hill, derived under the sheriff’s sale made under the Buford & Field judgment against Harris, November 13, 1875.

As against this title, it is claimed that by Glenn’s redemption on September 10, 1875, from the first sale on September 8, 1874, of this ten acres, under the judgment of the Montgomery County Loan and Trust Company, the land reverted to the judgment debtor, and became subject to the second sale of it made under that judgment on February 8, 1875, and that thus the title passed under this second sale, and became vested in the defendant. By provision of our statute a conveyance of land by one not having title, is made as valid to pass an after acquired title as if the grantor had the legal estate at the time of the conveyance. But this does not extend to a sheriff’s deed- made upon an execution sale. The sheriff sells, and his deed conveys but such interest as the judgment debtor has at the time of the sale, and the deed does not operate to pass any subsequently acquired title to the land. The redemption from the first sale, and the restoration thereby of the land to the judgment debtor, had no effect to cause anything which thus came back to the debtor, to pass under the intermediate and second sale.

The decree will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.


text:
    Owners of Lands v. The People ex rel. Madison T. Stookey.

      Filed at Mt. Vernon

      February 5, 1885.

    1. Drainage act—of 1879—constitutionality—as to legislative appointment to office. Section 43 of the act entitled “An act to provide for the construction, maintenance and repair of drains and ditches by special assessments on property benefited thereby,” approved May 29, 1879, does not violate section 10 of article 10 of the State constitution, which prohibits the legislature from appointing or electing any person to an office. The act creates no new office to be filled, but simply imposes additional duties upon officers already elected by the people.
    2. Same—drainage commissioners as “corporate authorities"—as to the mode of their appointment—whether within the constitution. The drainage commissioners provided for in the act of May 29,1879, being the county commissioners, are not an illegal municipal corporation because not elected by the legal voters of the drainage district, or appointed in some mode to which they have given their assent.
    3. The only debt the general Drainage act authorizes the corporate authorities to create, must be paid upon property specially benefited by the proposed improvement. Such assessment is not a personal charge, but is only against the property. It is the ownership in the real estate assessed, and not the public, merely, as such, that may be injuriously affected; and this is a sufficient reason why the corporate authorities need not be required to be elected by the voters of the district.

      4. The statute requires, as a condition precedent to the formation of a drainage district, that a majority in number of the adult owners of lands lying in the proposed district, and who shall be owners, in the aggregate, of more than one-third of the lands in such district, to unite in the petition to organize such district, and allows all other land owners in the district to contest the formation of the district. In this way an assent to the formation of the district is shown, and the land owners’ rights may be protected.
    5. The constitutional amendment adopted in 1878, imposes no limitations or restrictions upon the legislature as to the agencies to be used in the creation of a drainage district, and under such amendment the legislature has the power to declare who shall constitute the corporate authorities of such districts; and it is such corporate authorities,—not those elected by the voters, only,—that are to be vested with power to make the improvements by special assessments.
    6. Same—constitutionality—os depriving one of property without due process of law. Where a party whose land has been specially assessed for benefits under the general Drainage law, is afforded ample opportunity of being heard upon every question of fact and of law, and he fails to urge any just ground of defence, and suffers judgment to go against his land, and it is to be sold, he can not be said to have been deprived of his property without due process of law.
    7. Same—constitutionality—as conferring judicial powers on non-judicial officers. Section 46 of the Drainage act of 1879, which gives an appeal from the drainage commissioners’ orders confirming special assessments, to the county surve3ror, county treasurer and sheriff, who are constituted an appeal board to hear and decide all appeals, and giving a further appeal from that board to the county court, is not unconstitutional, as conferring judicial powers on a non-judicial body. The board of appeals does not exercise judicial powers, within the meaning of those words in article 3 of the constitution. It construes no law, and no legal rights are submitted to and adjudicated by it.
    8. Same—powers of hoard of appeal. The board of appeal provided for in the Drainage act of 1879, is limited to inquiring into, passing upon and reporting on questions of fact,—namely, the amount of benefits which will accrue to each tract of land, (and where the tract is both damaged and benefited, whether the one exceeds the other, and how much,) and whether the assessment made by the commissioners is correct.
    9. Same—powers of county court on appeal from assessment. An appeal from the board of appeals to the county court can only bring up for review that which was considered and acted upon by the board from which the appeal was taken. Whether the appeal is by one party or the other, the question before the county court will be substantially the same.
    10. Same —judgment on appeal—whether conclusive on legal questions. The decision of the board of review, and of the county court, on appeal, can only be res judicata as to the questions of fact brought up by the appeal. Legal questions as to the regularity of the proceedings may be raised on the application for judgment for the non-payment of the assessment.
    11. Same—local or special legislation in respect to drainage—constitutionality. There is nothing in the constitution which prohibits local or special legislation in respect to drainage. Article 11 of that instrument, entitled “Corporations,” relates to private corporations alone, and not to local municipal corporations. “Drainage” is not named in the direct prohibition of special or local legislation, in section 22, article 4.
    12. General legislation, as distinguished from that which is special —who may determine as to its applicability. The general clause in the section last referred to, that when a general law can be made applicable no special law shall be enacted, addresses itself to the General Assembly alone. When that body has concluded a special law is necessary, except in the cases ex- . pressly prohibited, its conclusion is not subject to judicial review.
    13. Municipal corporations—legislative control over. The General Assembly, when not expressly restricted by constitutional provision, has the power to define and prescribe what shall be the corporate authorities of local municipalities, and even to dispose of their revenues.
    14. Judicial power— defined. Judicial power is the power which adjudicates upon and protects the rights and interests of individual citizens, and, to that end, construes and applies the laws. The term has nevér been applied to those eases where judgment is to be exercised as incident to the execution of a ministerial power.
    Appeal from the County Court of St. Clair county; the Hon. William J. Underwood, Judge, presiding.
    Mr. J. M. Dill, and Messrs. Flannigen & Canby, for the appellants:
    The drainage district in this case was organized under section 43, chapter 42, of the Revised Statutes, and we think it an illegal corporation because the drainage commissioners therein named are directly appointed by the legislature, which is prohibited by the constitution from making any appointment to office. Const. art. 5, sec. 10; Harward v. St. Clair Levee and Drainage Co. 51 Ill. 136; State v. Kennon, 7 Ohio St. 546; Wood v. United States, 15 Ct. of Claims, 151.
    By section 31, article 4, of the constitution, as amended in 1878, the legislature is authorized to “provide for” the organization of drainage districts,—not to organize them. The legislature thus may vest the corporate authorities thereof with power, etc., but has no power given to appoint corporate authorities.
    The drainage commissioners are an illegal corporation because not elected by the people of the drainage district, or appointed in any mode to which they have given their assent. The “corporate authorities” who may impose taxes, etc., are municipal officers, who are either directly elected by the people, or appointed in some manner to which they have assented. Harward v. St. Clair Levee and Drainage Co. 51 Ill. 136; Hessler v. Drainage Commissioners, 53 id. 113; Gage v. Graham, 57 id. 144; Updike v. Wright, 81 id. 50; Cornell v. People ex rel. 107 id. 372.
    The amendment of the constitution of 1870, giving the legislature power to vest the “corporate authorities” of such districts with power to make drains, etc., by special assessments, is a limitation upon the power of the legislature to vest such right in any other than the corporate authorities.
    The board of appeals created by section 46 of the act, is not authorized by the constitution and laws of the State, and is an illegal tribunal—a non-judicial body, invested with judicial functions. Poppen v. Holmes, 44 Ill. 360; Bullock v. Goemble, 45 id. 218; Hall v. Marks, 34 id. 358.
    The constitution having vested and distributed the whole judicial power in certain courts, it is not competent for the legislature to confer such power upon any other than the courts therein named. People v. Maynard, 14 Ill. 422; Beesman v. City of Peoria, 16 id. 484; Milwaukee Industrial School v. Supervisors, 40 Wis. 328; Baton Rouge v. Dearing, 15 La. Ann. 208; Chandler v. Nash, 5 Mich. 409; Waldby v. Callendar, 8 id. 430; Lafou v. Dufrocq, 9 La. Ann. 350; Hodgson v. Milward, 3 Grant, (Pa.) 406.
    The drainage commissioners may appeal from this board on every ground, while the party whose lands are assessed is allowed an appeal only on one ground—that the assessment is greater than the benefits. Hurd’s Stat. 1883, chap. 42, sec. 26.
    The “due process of law” except by which a man can not be deprived of life, liberty or property, is construed to be a law or provision for a hearing before condemning, and which arrives at a judgment through what is ordinarily known as judicial process, upon a trial, according to the course of the common law. Warden v. Mount, 78 Ky. 89; Taylor v. Porter, 4 Hill, 140; Westervelt v. Gregg, 12 N. Y. 209; Bank of Columbia v. Okely, 4 Wheat. 244.
    The legislature is prohibited from passing any special or local laws, where a general one can be made applicable. Const, art. 4, see. 22.
    If these two acts can not coexist, and the manifest object of the legislature be carried out, both must be declared void. Barressalbo v. People, 17 Ill. 101; Stribling v. Pretty man, 57 id. 372; Way v. Way, 64 id. 406.
    Messrs. Hay & Knispel, for the appellee:
    In the case of Moore v. People, 106 Ill. 376, this court held this act to be constitutional. Appellant having signed the petition upon which the formation and organization of the district were based, he is precluded from denying the validity of the act. Blake v. People, 109 Ill. 504; Cooley’s Const. Lim. 181.
    The legislature, alone, is vested with the discretionary power of saying when a general law can be made applicable.
    It is the statute that creates the corporation,—not the county court; but the General Assembly is left unrestricted by the constitutional amendment as to the manner of creating drainage corporations.
    The legislature has not appointed any officers, but has simply imposed additional duties upon officers elected by the people, and for the exercise of these duties it has designated the very body elected by the people to perform the duties most intimately connected with these additional duties. See the case of People v. Salomon, 51 Ill. 50, which was approved ■ in People v. Brislin, 80 Ill. 423, and Dunham v. People, 96 id. 331.
    It is the common practice, in all States, to appoint a “board of review” or “board of appeals” to hear objections from taxpayers, and to give them an opportunity to be heard before the assessment becomes fixed and final against them. Such boards are not judicial bodies. It is in the discretion of the law making power to say of what persons or officers these boards shall consist. Cooley on Taxation, 265, et seq., 528, 529; Peoria v. Kidder, 26 Ill. 351.
    There can be no constitutional objection to section 46 of the Drainage act. We have the same .provisions in the Revenue act, and they have been repeatedly upheld by this court. People v. Big Muddy Iron Co. 89 Ill. 116; Felsenthal v. Johnson, 104 id. 21.
    So the act establishing the State Board of Equalization was held constitutional. People v. Solomon, 46 Ill. 333.
    It is clearly within the power of the legislature to say who shall ascertain and determine the extent of the special benefits, and who shall assess them. (Crawford v. People, 82 Ill. 557.) The authorities cited by appellants under this head have no bearing upon the case whatever. Cooley on Taxation, 528, 529.
    The objection that this section of the statute deprives the land owner of his property without due process of law, is totally unfounded. Cooley on Taxation, 429, and authorities cited.
    The board of appeals has only to say whether or not the amount of taxes assessed is reasonable and just. Ample opportunity is given to the land owner to question every step taken in the organization of the district, and for any illegality he has adequate remedy. That remedy is the writ of certi

      orari. Low v. Railroad Co. 18 Ill. 324; Commissioners v. Supervisors of Carthage, 27 id. 140; People v. Wilkinson, 13 id. 660; Bailey v. McCain, 92 id. 277.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This was an application for a judgment for the amount of a special assessment to construct a drain. The drainage district was organized under the act entitled “An act to provide for the construction, maintenance and repair of drains and ditches, by special assessments on the property benefited thereby, ” approved May 29, 1879. The judgment below is sought to be reversed upon objections, alone, to the constitutionality of that act. In passing upon these objections, it will be most convenient to follow the order in which they are presented and discussed in the printed- arguments before us.

First—It is contended that section 43 is within the inhibition of section 10, article 10, of the constitution, which prohibits the General Assembly from appointing or electing any person to an office. This assumes what can not, in our opinion, be maintained, namely, that by that section some one is appointed or elected to an office. Obviously, before there can be an appointment or an election to an office, the office itself must have an existence, either by virtue of the constitution or by virtue of some statute. It is not pretended that the constitution creates the office of “drainage commissionór, ” or that such office is created by any other statute than the act of May 29, 1879, under consideration, but only that it is created by this section of that act. But the language of this section assumes to create no office. It purports, simply, to add duties to an office created by the constitution. Its language is: “The county commissioners, in counties not under township organization, shall be the drainage commissioners in and for their respective counties, ” etc. In other words, the county commissioner shall, in addition to the duties previously devolved upon that office, discharge the duties of drainage commissioner, which duties are further specifically defined in other sections. All this is to be done by the county commissioner because he is county commissioner, and not because he holds some other office. It would seem quite apparent the meaning would have been precisely the same if, throughout the act, the term, “drainage commissioner,” had been entirely omitted, and the words, “county commissioner, ” had been substituted where it occurs.

The question is not new in this court. The constitution creates the offices of treasurer and sheriff. The General Assembly has enacted that “the treasurers of counties under township organization, and the sheriffs of counties not under township organization, shall be ex officio county collectors of their respective counties.” (Rev. Stat. 1874, p. 881, sec. 144.) No material distinction can be observed between this language and that in the 43d section of the Drainage act, so far as relates to the additional duties imposed upon an office already in existence. The word, “ex officio, ” only expresses in the one case what is necessarily implied in the other. If county commissioners are drainage commissioners merely because of the office, which, as we have shown, is the undoubted meaning of the language, then they are ex officio drainage commissioners. In Kilgore v. The People, 76 Ill. 550, in passing upon the question whether collector is an office, and after referring to the section of the statute relating thereto, above quoted, we said: “This is a duty that the legislature had the right to impose upon these officers, and to require of them additional bonds for the performance of such additional duties. No office was created thereby, but a legislative order that all county treasurers in certain counties shall, by virtue of their office as treasurer, collect the revenue of the county. Should ene of these treasurers fail to give bond for the faithful performance of the duty of collecting, the office may be declared vacant. What office? The office of treasurer, there being none other. ” There was, also, like ruling in Wood v. Cook, 31 Ill. 271.

The county commissioners are elected by the people of the county,—those for whom they are county commissioners,— and are not appointed or elected by the General Assembly, any more than are sheriffs and treasurers. We do not conceive that the addition of the language that they, (i. e., the county commissioners,) when acting as drainage commissioners, “shall be a body politic and corporate,” and that in all legal proceedings their corporate name shall be “the drainage commissioners of................county, State of Illinois, ” adds any force to the objection. The county commissioners were a municipal corporation before the date of this enactment, and they still remain such. The addition of duties to that corporation, and declaring that as to such additional duties, in all legal proceedings, it shall be called by a different name, it is quite obvious, does not change the constituents of the corporation. It neither creates new offices nor appoints individuals to offices already created.

In Harward v. St. Clair Levee and Drainage Co. 51 Ill. 130, and other cases governed by like principle, cited in argument, the law created an office, and designated the particular individuals who should fill it, and hence are not analogous to the present case. Precisely the same objection was made, and overruled, in Kilgour v. Drainage Commissioners, 111 Ill. 342, and in Huston v. Clark, 112 Ill. 344, and we might have contented ourselves by simply saying stare decisis; but the importance of the question, and the ability and earnestness of the arguments here made in support of the objection, have induced us to reconsider the question, which we have accordingly done, with such care as we can; and after having done so, our conclusion still remains unchanged.

Second—The next objection is, “these drainage commissioners are an illegal corporation, because they are not elected by the people of the drainage district, or appointed in any mode to which they have given their assent. ” This is based upon the decisions in The People ex rel. v. Mayor, 51 Ill. 17, Harward v. St. Clair Drainage Co. id. 130, and kindred cases, where the decision, or, at least, intimation, of the court was, that a law creating -a municipal corporation with power to incur debts which would have to be paid by general taxation, to be obligatory must first receive the sanction of a majority of the legal voters of the district. No express constitutional provision required this, but the conclusion was deduced from the restriction imposed upon the General Assembly by section 37, article 3, of the constitution of 1848, which prohibited the State from creating a debt exceeding $50,000 without the consent of the people, manifested by a vote at a general election. The vote of the people of the district was required, because any debt created would fall upon the taxable property of the entire district, and might be such as to bankrupt the tax-payers. But in The People v. Harper, 91 Ill. 357, we said, speaking of this requirement: “But this is a protection against taxation, only, and not a limitation upon the powers of the State government in selecting agencies through which to protect the people against wrong and injustice, where no local burden is imposed. ” And in numerous other decisions this court has announced, in general terms, the power of the General Assembly, when not expressly restricted by constitutional provisions, to define and prescribe what shall be the corporate authorities of local municipalities, and even to dispose of their revenues. The People v. Wren, 4 Seam. 273; County of Pike v. State, 11 Ill. 202; County of Richland v. County of Lawrence, 12 id. 1; Dennis v. Maynard, 15 id. 477; Town of Mt. Carmel v. Wabash County, 50 id. 69.

The reasoning controlling in The People ex rel. v. Mayor, Harward v. St. Clair Drainage Co., and other like cases, can have no application to the statute now before us, for the only debt it authorizes to be created must be paid by a special assessment upon the property specially benefited by the proposed improvement. Such an assessment is not a personal charge, but one, only, against the property specially assessed. (Craw et al. v. Village of Tolono et al. 96 Ill. 255.) The property specially assessed may belong to a very few of the voters of the district. The theory of the special assessment is, certain real estate will be benefited by the proposed improvement more than it will cost to make it, and it, therefore, must bear the burden. It is the ownership in that real estate,—. not the public, merely, as such,—that may be injuriously affected by that special assessment. And this ownership is, in fact, better protected by this statute than it would be by a popular vote of the district, for the statute requires, as a condition precedent to the organization of the drainage district, that a. majority in number of the adult owners of lands lying in the proposed district, and who shall be owners, in the aggregate, of more than one-third of the lands lying in said district, shall unite in the petition for the formation of the district, and allows all other land owners in the district an opportunity to appear and contest the formation of the district. When the people adopted the amendment to the constitution, at the November election, in 1878, they expressly empowered the General Assembly to “provide for the organization of drainage districts, and to vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under laws of this State, by special assessments upon the property benefited thereby. ” We held in Blake v. The People, 109 Ill. 505, that the purpose of the adoption of this amendment was to obviate the objections held fatal in Updike v. Wright, 81 Ill. 49, and Webster v. Lesee Commissioners, (unreported,) and we said: “We are unable to discover, here, any limitation or restriction upon the General Assembly as to the agencies to be used in the creation of the corporation.” Power to provide for the organization of drainage districts plainly carries with it, as an indispensable incident, power to declare what shall he the corporate authorities of those districts, and it is such corporate authorities,—not corporate authorities elected hy the voters of the drainage district alone,—that is to be vested with power to make the improvements by special assessment. Had the General Assembly, instead of providing as it did by this enactment, provided that there should be elected, by the legal voters of the drainage district, certain persons to constitute the corporate authorities thereof, then, unquestionably, only those persons could have been empowered to make the special assessment. But the General Assembly was not bound to so provide, and did not so provide. Under section 9, article 9, of the constitution, it is provided that cities, towns and villages may be vested with power to make local improvements by special assessments, and that power has been acted under in almost, if not quite, every municipal corporation throughout the State; but it was never supposed, in such cases, that the proposed improvement must, to be valid, be territorially coextensive with the municipal authority under which it is made. Such a requirement would, of necessity, render nugatory the power to make special assessments, because they can only be local, and where there are special benefits. It would, in all cases, be extremely difficult, and in many cases impossible, to prescribe a district, by law, in which corporate officers should be elected, with the exact boundaries of the beneficial influence of a drain or levee, in advance of the legal ascertainment, by judicial trial or otherwise, of what property is specially benefited by such drain or levee. But it is sufficient no clause of the constitution contains such a requirement, and no clause of that instrument prohibits the making the county commissioners the corporate authority for every drainage district in the county, although they are elected by the votes of others in the county, as well as of those of this drainage district. It is of constant practice, in our government, that some officers, elected by the whole people, exercise local powers as well as general powers,,as in the ease of the State officers, and that other officers, elected by local constituencies, exercise general powers throughout the State, as, members of the General Assembly, members of the State Board of Equalization, and judges of the Supreme Court; and it is exceptional, rather than general, that official duties shall be neither more limited nor more extended than a single undertaking embracing every part of th» precise territory of the election district of the officers, as this objection implies.

Third—Another objection urged with much earnestness is, “the board of appeals created by section 46 is not authorized by the constitution, and is an illegal tribunal—a non-judicial body, invested with judicial functions.”. The supposed obnoxious section reads:

“Appeals from the orders of drainage commissioners confirming any special assessments in counties not under township organization, may be taken by any person interested, who is not satisfied with the decision of the commissioners, to the county surveyor, county treasurer and sheriff, who shall constitute a board of appeals, who shall meet, when notified by the clerk, for the purpose of hearing appeals in such cases; and at such meeting they shall proceed as hereinbefore provided for supervisors when hearing appeals in like cases. Either party aggrieved by the action of the board of appeals may appeal therefrom to the county court, on the same conditions, under the same restrictions and with the like effect as hereinbefore provided for appeals from supervisors.”

The objection is claimed to be sustained by article 3 of the constitution, which ordains that “the powers of the government of this State are divided into three distinct departments, —the legislative, executive and judicial,—and no person or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.” The constitution nowhere undertakes to define what is here meant by “judicial power, ” but leaves us to ascertain its meaning otherwise. It has been defined, in general terms, (and, as we think, with sufficient accuracy for the purposes of the present question,) “the power which adjudicates upon and protects the rights and interests of individual citizens, and to that end construes and applies the laws.” (Cooley’s Const. Lim. 1st ed. 91.) It has never been held to apply to those cases where judgment is exercised as incident to the execution of a ministerial power, nor has it ever been held the exercise of ministerial power by the courts, within the meaning of this article, where they have been compelled to exercise a ministerial act as an incident to the exercise of judicial power. Thus, sheriffs exercise judgment,—and therefore, strictly speaking, act judicially,—in hearing statements and determining as to the value of property on which to levy, and as to the sufficiency of security offered upon the execution of bail bonds; and justices of the peace exercise ministerial powers in issuing summons and executions, and circuit judges in issuing writs of habeas corpus. Cooley, in his work on Torts, page 375, says.: “Official duties are supposed to be susceptible of classification under the three heads of legislative, executive and judicial, corresponding to the three departments of government bearing the same designations; but the classification can not be very exact, and there are many officers whose duties can not properly, or, at least, exclusively, be arranged under either of these heads. A single ease may suffice as an illustration. The officers chosen to levy and apportion taxes for the inferior municipal subdivisions of the State are, in some cases, authorized, first, to determine what taxes shall be levied within the municipality for the year; second, to value the property which is to be assessed for these taxes; third, to apportion the taxes as between the several items of property assessed; and fourth, to receive from their superior officers the statements of taxes to be assessed for more general purposes, and to apportion these in the same way. The first of these duties partakes of the legislative, the second of the judicial, the third and fourth of the executive, but, in strictness, none of them can be classed as belonging specially to either department of the government, and the officers who perform them are usually designated administrative officers. ” In The People v. Percells, 3 Gilm. 59, and Hawthorn v. The People, 109 Ill. 302, it was held statutes conferring power upon clerks of courts to judge of the sufficiency of bonds did not confer judicial power, within the meaning of this article of the constitution, notwithstanding the acts to be performed required the exercise of judgment and discretion, and were in their nature, therefore, judicial. So, also, it was held in Campbell v. Head, 13 Ill. 122, that the assessment of damages by the court, under the 6th section of the Replevin act then in force, and in Ross v. Irving, 14 Ill. 171,. that the assessment of damages by commissioners, under the “Occupying Claimant’s law,” were not judicial acts, because the inquiry was not to settle the fact of liability, but merely to determine its amount. In Nealy v. Brown, 1 Gilm. 10, the laying out and" opening of roads by county commissioners are held not to be an exercise of judicial powers. In Rowe v. Bowen, 28 Ill. 116, it was held the trial of the rights of property before a sheriff and jury is not a judicial proceeding, notwithstanding an'appeal is allowed therefrom to the circuit, court. This was approved and followed in Bureau Co. v. Chicago, Burlington and Quincy Railroad Co. 44 Ill. 229, where an appeal was allowed from a board of supervisors, a non-judicial tribunal, in a case of an assessment, or, rather, of valuation of property assessed for taxes. We have held that assessors, in valuing property for taxation, and boards of supervisors and boards of equalization in reviewing such valuations or in valuing as original assessors, act judicially, and yet it was never claimed or pretended that they are courts, or usurp judicial powers in so doing. (Spencer v. The People, 68 Ill. 510; Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 id. 595.) In The People ex rel. v. Supervisors, 47 Ill. 263, it was said that the decision of a board of supervisors that a bridge at a particular point is a necessity, is res judicata as to that fact,—and this without holding that the board of supervisors was a court, or that it was exercising judicial powers, within the meaning of the article of the constitution now before us. In Wright v. City of Chicago, 48 Ill. 285, the question arose, in principle, precisely as it does here, on the report of the commissioners on a special assessment, and we then said, among other things: “These commissioners were acting in a quasi-judicial capacity, as they were required to investigate, deliberate and decide.” In Rich v. City of Chicago, 59 Ill. 295, it was said, in answer to the objection that commissioners could not, constitutionally, be empowered to assess the damages and benefits to property affected by the improvement: “We are, however, of the opinion that this proceeding, which is for the assessment of the damages against property specially benefited, is open to no constitutional objection. The 9th chapter of the charter makes it indispensable to a sale of the real estate for the payment of such an assessment, that a judgment of some court of general jurisdiction be had upon the warrant. The acts of the commissioners may therefore be considered as ministerial, and not judicial. They are the means.by which the proceédings are initiated and the cause brought before the court, and for that purpose are valid. ” In Crawford v. The People ex rel. 82 Ill. 557, the trustees of the town of Cicero appointed commissioners to assess damages and benefits to property affected by the opening of a street. The question of constitutional power was raised, and it was held it was within the power of the legislature to say who should ascertain and determine the extent of the special benefits, and who should assess them. A like ruling was made in Lake v. City of Decatur, 91 Ill. 597, where commissioners were appointed by the county court.

In practice, in very many other cases, proceedings have been held valid resting upon the decisions of just such tribunals as this, although the constitutional objection was not discussed and considered. Although the language of the judges, in speaking of the character of the duties, has not always been identical, the result has, without exception, been to sustain the action of the board. The tribunal does not exercise judicial power, within the meaning of that word as used in the third article of the constitution. The power exercised is ministerial, only, although, as an incident to its exercise, the board is required to do a judicial act, or, rather, an act which is, in its nature, judicial. No law is construed or applied by the board, and no legal rights are submitted to and adjudicated .by it,—without which, we have seen, judicial power is not exercised. The cases cited by counsel .for appellant assert nothing to the contrary. In Poppen v. Holmes, 44 Ill. 360, and Bullock v. Goemble, 45 id. 218, the effect of the proceeding was, directly, to divest title, and therefore necessarily must be supported by an adjudication,—an application of the law .to the facts, and an authoritative declaration of the result, which could only be done by a court. In Hall v. Marks, 34 Ill. 358, a clerk,—a mere ministerial officer,—assumed to render a judgment, which can only be done .by a court. In the other two cases cited,—The People v. Maynard, 14 Ill. 422, and Beesman v. City of Peoria, 16 id. 484,—it was simply held that the adoption of the constitution of 1848 repealed certain laws investing mayors of cities with judicial powers.

Fourth—Another objection is, that under the 20th section of the act the drainage commissioners are permitted to appeal to the county court upon any and every ground which may show that the judgment of the board of appeals is illegal and erroneous, but the land owner can appeal only, upon the ground that his assessment is greater in amount than the benefits accruing to his lands, etc. This objection is, in our opinion, the result of a misapprehension. As we have already held, the board of appeals exercises no judicial powers. Its functions are limited to inquiring into and passing upon and reporting questions of fact, namely, the amount of the benefits which will accrue to each tract of' land, (and, when the same tract of land is both damaged and benefited, whether the benefits exceed the damages,) and whether the assessment made by the drainage commissioners is excessive. This is quite apparent from sections 14 and 20. An appeal to the county court can, in its nature, bring up for review only that which was considered and acted upon by the board from which the appeal is taken. The only question in which the land owner can have any interest justifying an appeal to the county court is, that the assessment is greater in amount than the benefits accruing to the lands by the construction of the proposed work. If the assessment is excessive, it must be greater in amount than such benefits. If it is not excessive, but is less in amount than such benefits, he has no ground to complain of the action of the board of review, and no wrong is done him in denying him an appeal in such instance. It is not expressly said on what ground the drainage commissioners may appeal, but, plainly and necessarily, it must result on directly the reverse grounds,—that is, upon the ground either that the land benefited has not been assessed in any amount, or has been assessed too low. There are no other grounds upon which they could have an interest in appealing. Whether the appeal, then, shall be by the one party or the other, the questions before the county court, on appeal, must be substantially the same. Legal questions, apart from the action of the board of review and the county court, as to the regularity of the proceedings, can, of course, be raised, when, as now, judgment against the lands for non-payment of the assessment is asked. The decision of the board of review, and of the county court, on appeal, can only, in any view, he res judicata as to the question brought up by the appeal.

It is a sufficient answer to the objection that this section deprives the land owner of his property without due process of law, that, if the view we have taken is correct, it is a misapprehension. He is allowed, abundantly, to be heard upon every question of fact, and if he had legal objections which he has not here urged, it was his own folly. He has had an opportunity to urge them, and the judgment and process under which his property will be sold, if he shall permit it to go to sale, will be “due'process of law.” (Cooley on Taxation, 36, et seq.) It is said, quite correctly, as we think, by Mr. Justice Miller, in delivering the opinion of the court in Davidson v. New Orleans, 96 U. S. (6 Otto,) 97, “that whenever, .by the laws of a State or by State authority, a tax, assessment, servitude or other burden is imposed upon property for the public use, whether it be for the whole State or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings can not be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections.” See, also, to like effect, Hagan v. Reclamation District No. 108, 111 U. S. 701.

Fifth—The last objection urged is, that the General Assembly passed two acts upon the same subject, on the same day, providing for different systems of drainage corporations, and that therefore both acts are special legislation, and for that reason condemned by the constitution. We have not thought it necessary to analyze and compare the various sections of the two acts, to see whether this statement as to their substance and effect is true or not, since we deem it unimportant. Concede they are local or special legislation, what clause of the constitution prohibits their enactment ? Article 9 of the constitution, entitled “Corporations, ” clearly relates

to private corporations, and not to local municipal corporations. This is so apparent upon the face of the constitution that we deem the mere statement, of itself, sufficient. The direct prohibition of special or local legislation is alone contained in section 22, article 4. “Drainage” is not one of the subjects enumerated in that section. It prohibits the incorporating of cities, towns and villages, or changing or amending their charters, (but not the formation of drainage districts with corporate authority,) except by general law. The general clause at the end of the section, that “where a general law can be made applicable, no special law shall be enacted, ” addresses itself to the General Assembly, alone. When that body has concluded a special law is necessary, except in the cases expressly prohibited, its conclusion is not the subject of judicial review. Under the constitution of 1848, there was a provision that “corporations not possessing banking powers or privileges may be formed under general laws, but shall not be created by special acts, except for municipal purposes, and in eases where, in the judgment of the General Assembly, the objects of the corporation can not be attained under general laws.” It was held in Johnson v. J. and C. Railroad Co. 23 Ill. 202, that the judgment of the General Assembly was conclusive of the question, and in The People v. Harper, 91 Ill. 357, we applied the same ruling to the provision now under consideration.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Ellis B. Ebert v. Edward J. Beedy.

      Filed at Springfield

      February 26, 1885.

    Fictitious action—dismissal of proceedings. "Where this court is satisfied that an action is fictitious, and the parties fail to appear and show that it is a real suit, after time and opportunity are given them so to do, the judgment appealed from will be reversed, and the cause remanded to the trial court, with directions to dismiss the same, and for this purpose a submission of the cause to this court on the merits, set aside.
    Appeal from the Circuit Court of Jersey county; the Hon. G-eobge W. Hebdman, Judge, presiding.
    Mr. W. H. Bennett, for the appellant.
    Mr. L. H. Hite, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was originally commenced in ejectment, by Edward J. Beedy, against Ellis B. Ebert, in the City Court of East St. Louis. At the next term after the issuing of the summons, by consent of parties, the venue in the cause was changed to the county of Jersey. On the record being filed in the circuit court of Jersey county, a trial was had in that court, which resulted in favor of plaintiff,-^that he recover the premises described in the declaration, and that he recover costs against defendant. An appeal was allowed defendant, which he afterwards perfected to this court, and at the June term, 1883, the cause was submitted in this court for decision.

On looking into the record, there was something that indicated to this court the cause might be a feigned or a fictitious case, and with a view to ascertain whether it was or not, at the June term, 1884, the order taking the case was set aside, and a rule was entered requiring the appellant, Ellis B. Ebert, to appear at the next term of this court and argue the cause orally, and to show cause, if any he had, why the appeal should not be dismissed. It was directed that a copy of that order should be sent to the sheriff of St. Clair county to be served, and it was so sent by the clerk of this court, but the order was returned not served on appellant because he could not be found in that county.

At the present term of this court a motion, or perhaps a suggestion, has been made by counsel amicus curia, that the cause is a feigned or a fictitious one, and that it should be dismissed. The motion or suggestion is supported by an affidavit of a party residing in St. Louis, who states in his affidavit that he is the owner of the premises described in the declaration; that he has the same enclosed with a fence; that he is in the actual possession of the same, and that until a few days before making the affidavit he never heard of any such persons as Ellis B. Ebert and Edward J. Beedy,—parties plaintiff and defendant. When the motion or suggestion was made that the cause should be dismissed because fictitious, counsel for appellant and appellee were given time to answer the suggestion. The time allowed them to do so has now elapsed, and no affidavit of the good faith of the parties in prosecuting the suit has been filed, nor has any suggestion from them whatever been made to this court. Under this state of facts the court is satisfied the case is fictitious,—not a real one; and it is the opinion of the court the judgment of the circuit court should be reversed, and the cause remanded, with direction to that court to dismiss the suit. McConnell v. Shields, 1 Scam. 582; Spraggins v. Houghton, 2 id. 211; The People v. Leland, 40 Ill. 118.

Judgment reversed.