author: Mr. Justice Bailey

text:
    Joseph Oswald v. Peter Wolf.

      Filed at Ottawa June 15, 1889.

    1. Nuisance—jurisdiction in chancery — of the basis thereof. The jurisdiction of courts of equity over the subject of private nuisances is. not an original one. It does not arise from the mere fact that a nuisance exists, but results from circumstances which call it into exercise upon other grounds, such as irreparable mischief, or of suppressing oppressive and interminable litigation, or of preventing multiplicity of suits.
    2. To entitle a party to equitable relief against a private nuisance before resorting to a court of law, his case must be clear, so as to be free from all substantial doubt as to his right to relief. In doubtful cases-he will be turned over to his legal remedy. To entitle him to come into a court of equity in the first instance, there must be “a strong and mischievous case of pressing necessity.”
    3. Same—obstructing private right of way—whether equity will interpose. Where one has not for a long time been in the quiet and uninterrupted enjoyment of a private right of way over the land of another, or his right has not been established at law, or is not clear, but is disputed and doubtful, a court of equity will not enjoin another, claiming-adversely, from obstructing such right of way.
    4. Private WAT—when the right will pass by implication—and when the right will expire. Where the owner of land grants a part of it, so-situated that there is no access to it from any street or highway except over the land of the grantor or of a stranger, a right of way to the same over the remaining land of the grantor will pass by implication, as a way of necessity. Such a right of way will expiré when the necessity for the same ceases, as, where a public street is laid out along and over the land so granted.
    5. Same—a deed construed as granting a private way. The owner of a tract of land bounded on the east by a street, conveyed the west third thereof, the deed containing this clause: “And also the right of way on a strip of land fourteen feet in width, running east and west, from the one-third herein conveyed to H. street, bounded by two lines running parallel to the center line of the remaining two-thirds of said tract, east and west, each being seven feet distant from the said center line:” Held, that the deed vested in the grantee an easement in fee, in the nature of a private way over the land of the grantor.

      6. In such case, the grant was not of an alley, public or private, and was in no sense an appropriation of the strip of land over which the right of way ran, to the exclusive use of the grantee, but was a grant of a mere right of way appurtenant to the land granted, which vested in the grantor and his grantees only a right to pass and re-pass along the prescribed line or route, between the land conveyed and the street.
    7. Same—tax title—whether paramount to the right of way, or easement. A tax title, if valid, is paramount to all other titles and interests in the land, and the sale of a tract over which a party has a right of way, when valid and followed by a proper deed, will cut off and extinguish the right of way.
    8. Tax title—by whom it may be acquired. Persons who, by reason of their ownership of lands, or otherwise, are under a legal, or perhaps a moral, obligation to pay taxes and assessments thereon, are precluded by the policy of the law from becoming purchasers of such lands at tax sale. In case of a purchase, such party obtains no independent title, the purchase being deemed in law only a mode of paying the taxes. The same will probably apply to one under a legal obligation to pay the taxes who afterward purchases an outstanding tax title acquired by a stranger.
    9. But when the land owner holds by a title acquired subsequent to the levy of the tax, and has not assumed its payment, or in any way become liable to see it paid, the reason of the rule which disqualifies one whose legal duty it is to pay the taxes from acquiring a tax title, manifestly does not exist.
    10. Pubchaseb—taking subject to a lien for taxes. In case land is sold by the owner after taxes levied thereon have become a lien, the purchaser will take his title subject to the lien; but in the absence of any express or implied covenant or undertaking to pay the taxes, he will not assume any legal liability in respect to them. He will stand in the same relation to the taxes as any other grantee whose deed is made subject to an existing incumbrance.
    Writ of Error to the Superior Court of Cook county; the Hon. Gtwynn Garnett, Judge, presiding.
    This was a bill in chancery, brought by Peter Wolf against Joseph Oswald, to remove certain obstructions from a private way which the complainant claims to have over the lands of the defendant. Issues were duly formed by answer and replication, and the cause being heard on pleadings and proofs, a decree was entered in favor of the complainant.

      The bill alleges that, on the 22d day of December, 1855, Peter Duffy, being the owner of a tract of land in Cook county lying on the west side of Halsted street, having a frontage on that street of twenty rods and running west eighty rods, conveyed to the complainant the west one-third of said land, together with the right of way over a strip of land fourteen feet in width running through the center of the easterly two-thirds of said tract from the land so conveyed to Halsted street; that the complainant, in pursuance of said conveyance, entered into possession of the premises conveyed to him, and has continued to enjoy the same from thence hitherto, except as hereinafter stated; that the defendant, subsequent to said conveyance, became possessed of the remaining two-thirds of said tract of land, subject, however, to the right of way granted to the complainant; that there is no communication to the complainant’s premises from the north, south or east, except by said private way; that the defendant has erected obstructions upon said way, consisting of a high board fence across its western terminus, a gate at its eastern terminus, and an instrument of pleasure called a “Flying Dutchman” erected on the way between said points, which obstructions the defendant refuses to remove, and thereby prevents the complainant from enjoying the privilege of passing over said way; that the complainant has made a proposed subdivision of his premises, and that without said way, he will be greatly hindered and delayed in the sale of the same, as the most available means of access thereto is thereby cut off; that Halsted street is much travelled and has a line of street railway in operation, and is the nearest and most direct means of access to the complainant’s property, over and by virtue of said private way; that the complainant will suffer irreparable injury, unless the obstructions to said way are removed, and uninterrupted enjoyment thereof given him; that the complainant has applied to the defendant to remove said obstructions, but that the defendant has wholly refused to remove the same, and by pretenses that he has no objection to the use of said way, is endeavoring to obtain possession thereof, and wholly prevent the use of the same by the complainant. The bill prays that the defendant be decreed to remove all obstructions from said way, and permit the unobstructed passage of the complainant and those claiming under him, over and upon said way, and forever maintain said way in a condition to be used by the complainant and those claiming under him, and also a general prayer for relief.
    The answer, among other things, denies the complainant’s title to said way, and claims title in the defendant to the east two-thirds of said tract of land superior to the complainant’s right of way. It alleges that, since the time the complainant claims to have obtained his title, numerous streets and alleys have been opened to and around said west one-third of said land, by means of which access to and egress from the same f,or any and all purposes is made easy and convenient, and that said west one-third of said land has been subdivided, platted and laid out into lots, streets and alleys by the complainant, so that there are streets and alleys running immediately through the same, furnishing easy access to each and every part thereof. It denies that the defendant is obstructing or interfering with the right of way or easement claimed by the complainant, or that he is in any way preventing the complainant from enjoying any privilege to which he is entitled; and also denies that said right of way would or could work any advantage to the complainant in the sale of his premises or any part thereof. It sets up title in the defendant to the east two-thirds of said land through conveyances of the same to him from the former owners, and also through several sales thereof made in October, 1874, for certain delinquent taxes and assessments before that time levied and assessed thereon, and certain tax deeds executed in pursuance of such sales, and a conveyance of said land to the defendant from the grantee in said tax deeds.

      The answer alleges that the defendant, immediately after obtaining title to the east two-thirds of said land, enclosed the same with a high board fence, and proceeded to erect improvements thereon; that at the east terminus of the alleged private way, he constructed and has since maintained a large gate; that he improved said premises with a view of using the same for picnic grounds, and that the same have been used and devoted to that purpose almost exclusively ever since, with the full knowledge of the complainant; that during all that time the defendant has never had occasion to or desired to use said way over said grounds, and that if a right of way has ever existed, as alleged in the bill, it has been abandoned and extinguished by non-user. The answer denies that the complainant has sustained or will sustain irreparable injury, or any injury whatever, by being denied a right,of way over the defendant’s premises, and also denies that the complainant is entitled to any relief, and prays the same advantage as if the defendant had pleaded or demurred to the bill.
    The evidence shows that, by deed dated December 22,1855, Peter Duffy conveyed said west one-third of said tract of land to the complainant, which deed also contained the following clause: “And also the right of way on a strip of land fourteen feet in width, running east and west, from the one-third herein conveyed to Halsted street, bounded by two lines running parallel to the center line of the remaining two-thirds of said ten acre tract east and west, each being seven feet distant from the said center line.” Some three or four years after said conveyance the complainant enclosed his land with a fence, and it has so remained ever since, although for the last fifteen or twenty years, the complainant himself has made no use of the land, hut on one or two occasions during that time he has permitted other persons to make hay on it. At no time since the complainant owned said land has he had occasion to make use of his right of way over the defendant’s land except at rare and distant intervals. According to the defendant’s testimony, which is in no way controverted, the complainant, a year or two after the defendant went into possession of his part of the tract in question, claimed of him said right of way, and then for seven or eight years he said nothing about it. The defendant took possession in 1873 or 1874, and since that time the complainant has used said way only to the extent of driving over it in his buggy four or five times, and on one occasion a load of hay was driven over it.
    It is not shown that the complainant was ever denied the right of passing over the defendant’s land, although it appears that the “Flying Dutchman,” occupying as it did a position on the line of the complainant’s way, made it necessary to diverge a considerable from said line to get past; and it also appears that a short time before the bill was filed, the defendant caused the gate at the westerly terminus of said way to be nailed up. This, according to the defendant’s testimony, was done for the purpose of excluding intruders from the defendant’s picnic grounds, and not with a view of excluding the complainant from said way, the defendant claiming to have been willing at all times to permit the complainant to use said way.
    It does not appear that the complainant has suffered any substantial damages in consequence of not being permitted to make further use of his said private way. He himself testified on cross-examination that he did not know that he had suffered any damage so far, but on further direct examination he testified, that people would pay more for lots in his subdivision if they could get to them from Halsted street through the alley.
    It is admitted by the complainant that his land is accessible from Morgan street which runs along its western boundary, and the evidence tends to show that Fifty-second street has been laid out along the north boundary line of the ten acre tract from Morgan street to Halsted street, but whether that street had been actually opened and put in a condition to be used by the public at the time of the hearing the evidence is to some degree conflicting. It also appears that the complainant, sometime prior to the filing of his bill, caused his land to be subdivided and platted into blocks and lots, and in making said plat, Sangamon street was laid out running east and west across the complainant’s land, leaving one tier of lots between it and the defendant’s land, and also an alley running east and west dividing the residue of the complainant’s land into two equal parts, both Sangamon street and the alley connecting at the easterly boundary line of the complainant’s land with Fifty-second street.
    Mr. Perry A. Hull, for the plaintiff in error:
    To justify the interposition of a court of equity in case of a private nuisance, it must be a strong and mischievous ease of pressing necessity, or the right to the easement must have been previously established at law, and the injury must be irreparable, or such as is not susceptible of pecuniary compensation, and it must appear that the party seeking the relief has not been guilty of laches; and even then a court of equity will not interfere, if by so doing serious damage would be inflicted upon the defendant without doing any practical good to the complainant. The following authorities fully sustain the above rule: 2 Story’s Eq. Jur. secs. 925, 925b, 925f; Washburn on Easements and Servitudes, (4th ed.) 747-750; Wood v. Sutcliff, 8 Eng. L. and Eq. 217; Reid v. Gifford, 6 Johns. Ch. 19 ; VanBergen v. VanBergen, 8 id. 286; Amelung v. Seekamp, 9 G. & J. 472; King v. McCully, 38 Pa. St. 76; Coe v. Manufacturing Co. 37 N. H. 255; Weller v. Smeaton, 1 Cox, 102; Dana v. Valentine, 5 Metc. 8; Ingraham v. Dunnell, id. 118; Porter v. Witham, 17 Me. 292; Dunning v. Aurora, 40 Ill. 481; Bliss v. Kennedy, 43 id. 67; Railway Co. v. Anderson, 108 id. 64; Parker v. Winnipisogee L. C. & W. Co. 2 Black, 545.
    It has also been held, that “no injunction will be granted whenever it will operate oppressively or inequitably, or contrary to the real justice of the case, or where it is not the fit and appropriate mode of redress under all the circumstances of the case, or where it will or may work an immediate mischief or fatal injury. Thus, for example, no injunction will be granted to restrain a nuisance by the erection of a building where the erection has been acquiesced in or encouraged by the party seeking the relief.” 2 Story’s Bq. Jur. sec. 959 a; Washburn on Basements'and Servitudes, *578; Elmhurst v. Spencer, 2 M. & G. (Eng. R.) 45.
    Oswald had not assumed to pay taxes levied or assessed prior tó 1873, on the part of the land then owned by him, and was not liable to pay them, and therefore neglected no duty in not paying them. Blackwell on Tax Titles, (4th ed.) 444-448; Smith v. Lewis, 20 Wis. 356; Lybrand v. Haney, 31 id. 233; Bowman v. Kockrill, 6 Kan. 331; Moss v. Shear, 25 Cal. 45, et seq.

    Mr. Elmer W. Adkinson, for the defendant in error:
    A court of equity will enforce the opening of an alley, (Kuecken v. Voltz, 110 Ill. 264,) and will also enjoin the obstruction in closing an alley. Cihak v. Klekr, 117 Ill. 643; McCann v. Day, 57 id. 101.
    The defendant in error is not seeking merely to enjoin a trespass, but to restrain the plaintiff in error, under color of right, from taking absolute possession of an easement to which he had no right, and inflicting a continuing and permanent injury upon the appellee. In such a case injunction is the proper remedy, Peoria v. Johnston, 56 Ill. 45; Smith v. Bangs, 15 id. 402.
    A bill in equity lies to restrain a permanent and continuing injury to private easements. High on Injunctions, sec. 849; Washburn on Basements, (4th ed.) 749, par. 4.
   Mr. Justice Bailey

delivered the opinion of the Court:

The deed under which the complainant claims title, conveyed to him, not only the west one-third of the tract of land in question, but also the' right to a private way over the remaining two-thirds of said tract from the land so conveyed to Halsted street. He now claims that said private way has been and is being obstructed by the defendant, and he therefore invokes the aid of a court of equity to remove the obstruction, and to confirm him in the use of his easement over the defendant’s land.

By his answer, the defendant denies the complainant’s title to said easement, and in support of such denial, he sets up an extinguishment of. the easement, first, by abandonment and non-user, and second, by the sale of the servient estate for a delinquent assessment legally levied thereon, and a tax deed executed in pursuance of such sale, the defendant l^eing the grantee of the paramount title thus acquired. The defendant also alleges that the private way claimed by the complainant has not been improperly obstructed, the obstructions complained of being only the proper means of protecting the defendant’s land against intruders, and that he has never in fact denied the complainant the privilege of passing over his land when applied to by the complainant for that purpose. The answer further insists that, as the complainant’s premises are now situated, the private way now claimed by him is of no substantial value, and that no substantial damage can result to the complainant from being deprived of the use of it. The evidence on the part of the defendant will be discussed hereafter, it being sufficient at this point to say, that it tends to support the allegations of the answer.

The question is presented at the threshold of the case, and is elaborately argued by counsel, whether the case made by the pleadings and proofs is one calling for the interposition of a court of equity. If it is not, it will of course be needless for us to spend any time in considering the merits of the controversy.

The jurisdiction of courts of equity over the subject of nuisances is not an original jurisdiction. It does not arise from the mere fact that a nuisance exists, but results from circumstances which call the jurisdiction into exercise upon other grounds. Thus, as said by Mr. Story: “In regard to private nuisances, the interference of courts of equity by way of injunction is undoubtedly founded upon the ground of restraining irreparable mischief, or of suppressing oppressive and interminable litigation, or of preventing multiplicity of suits. It is not every case which will furnish a right of action against ■a party for a nuisance, which will justify the interposition of courts of equity to redress the injury or remove the annoyance. But there must be such an injury as from its nature is mot susceptible of being adequately compensated by damages •at law, or such as, from its continuance or permanent mischief, must occasion, a constantly recurring grievance which cannot be otherwise prevented but by injunction.” 2 Story’s Eq. Juris, sec. 925.

Even this power was formerly exercised very sparingly and only in extreme cases, at least until after the right and question of nuisance had been first settled at law. While in modern times the strictness of this rule has been somewhat relaxed, there is still a substantial agreement among the authorities, that to entitle a party to equitable relief before resorting to a ■court of law, his case must be clear, so as to be free from all substantial doubt as to his right to relief. Even Mr. Wood, who seems to be an advocate of a very broad and liberal interpretation of the jurisdiction of courts of equity in matters ■of nuisance, admits that, “in order to entitle a party to equitable relief, his right must be clear, and the injury established, as in doubtful cases the party will be turned over to his legal remedy.” Wood on Nuisances, sec. 786. Many other authorities hold, that to entitle a party to resort to a court of equity of the first instance, there must be “a strong and mischievous case of pressing necessity.”

In Burnham v. Kempton, 44 N. H. 78, it is said: “Ordinarily a court of equity will not take upon itself to decide the fact that a nuisance exists, but will require that the party first establish his right at law. There are exceptions to this rule, as, where the right is admitted, or the facts are all admitted, so-that the court can determine, from the admitted facts, whether it is a case of nuisance or not. There could, of course, be no occasion for a trial at law in such a case. Bo in some cases-where a party has been long in the quiet and uninterrupted enjoyment of a right, another party will ,be restrained from interfering with that right, until he proves his right at law.”

In Rhea v. Forsyth, 37 Pa. St. 503, the court, after reviewing the authorities, lays down the rule as follows: “Where-the plaintiffs right has not been established at law, or is not clear, but is questioned on every ground on which he puts it, not only by the answer of the defendant but by proofs in the-cause, he is not entitled to remedy by injunction. It is not enough that he is able to produce some evidence of his right, when there is conflicting evidence that goes to the denial of that right. In a case so situated the plaintiff should first establish his right by an action at law, and then come into-chancery, if necessary, for the protection of the legally established right.”

In Gardner v. Village of Newburgh, 2 Johns. Ch. 162, Chancellor Kent based the right of equitable interposition in cases-of nuisances upon the principle “of a clear and certain right to the enjoyment of the subject in question, and an injurious interruption of that right which, upon just and equitable principles, ought to be prevented.” In Van Bergen v. Van Bergen, 3 Johns. Ch. 282, the rule was stated by the same chancellólas follows: “The cases in which chancery has interfered by injunction, to prevent or remove a private nuisance, are those in which the nuisance has been erected to the prejudice or annoyance of a right which the other party had long previously enjoyed. It must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law.”

In Carlisle v. Cooper, 21 N. J. Eq. 576, the court in discussing the basis upon which the jurisdiction of courts of equity in cases of nuisance rests, say: “It does not arise from the fact that a nuisance exists, but results from the circumstance that the equitable power of the court is necessary to protect the party from an injury, for which no adequate redress can be obtained by an action at law, or its interference is necessary to suppress interminable litigation, for the recovery of damages for an actionable wrong. As .a condition to the exercise of that power, it is essential that the right shall be clearly established, or that it should previously have been determined by an action in the ordinary tribunals for the adjudication of the rights of the parties, and the injury must be such, in its nature or extent, as to call for the interposition of a court of equity.”

“The question as to what is a nuisance is one peculiarly fitted for the investigation of a jury, and in an ordinary case, where the event of a suit in equity depends upon a legal right, the right must be ascertained in an action at law, before any relief can be granted in a court of equity.” 2 Story’s Eq. Juris, sec. 925 b.

The cases to be found in the reports illustrative of the rules above stated are very numerous. Reference is made to the following: Eastman v. Company, 47 N. H. 71; Attorney General v. Heishon, 18 N. J. Eq. 410; Shields v. Arndt, 4 id. 234 ; Hackensack Improvement Commission v. New Jersey Midland Ry. Co. 22 id. 94; Wolcott v. Melick, 11 id. 204; Goodall v. Crofton, 33 Ohio St. 271; Kennerty v. Etiwan Phosphate Co. 17 S. C. 411; Clack v. White, 2 Swan, 540; Fisk v. Wilbur, 7 Barb. 395; White v. Forbes, Walker, (Mohc.) 112; Hacke’s Appeal, 101 Pa. St. 245; Washburn on Easements, (3d ed.) 700; Adams’Equity, 311.

Do tlie pleadings and evidence in this case establish a right in the complainant to equitable relief within the meaning of the rules above laid down ? There can be no doubt that the deed from Peter Duffy to the complainant, dated December 22, 1855, vested in the complainant, in fee, an easement, in the nature of a private way, over the land now belonging to the defendant. When that deed was executed, however, the land conveyed was a tract of open prairie land, adjacent to no street, and wholly surrounded by lands belonging to other parties. So far as appears, Morgan street which now bounds the complainant’s land on the west, had not then been laid out. The only way by which the complainant could then reach the lands conveyed to him from a street or highway was over the remaining lands of his grantor, or over the lands of strangers, and if the deed had not in express terms granted a right of way over the grantor’s lands, there can he no doubt that such way would have passed by implication as a way of necessity. We would not be understood as holding that the way granted was a way of necessity and nothing more, since the grant was manifestly in fee, while a right of way by implication would expire whenever the necessity from which the implication arose ceased to exist. In other respects, however, there was no essential difference. The grant was not of an alley, public or private, and was in no sense an appropriation of the strip of land over which the right of way run to the exclusive use of the complainant, but was a grant of a mere right of way, appurtenant to the land granted undoubtedly, which vested in .the complainant and his grantees only a right to pass and repass along the prescribed line or route, between the land conveyed- and Halsted street.

The complainant’s land has been enclosed for many years with a fence, but no one has occupied it, and no use has been made of it for purposes of cultivation or otherwise, except that on one or more occasions several years ago, certain parties were permitted by the complainant to cut the grass growing on it for hay. Apparently said land is being held by the complainant, not for any immediate use, but in anticipation of the time when it can be made available for suburban or city lots. Morgan street has now been opened along its western boundary, and that street connects at intervals with various other streets running east and west, and by means of them with Halsted street and other streets in the vicinity. Fifty-second street has been laid out along its northern boundary, running from Morgan to Halsted street, and the preponderance of the evidence, as we think, shows that street to have been open to public use. The complainant, with the view doubtless of putting his land on to the market in the form of building lots, has subdivided and platted it into lots and blocks. The plat contains three blocks extending north and south across the entire tract. Between the easterly block and the one next west the complainant has laid out Sangamon street, and between the block last mentioned and the westerly block he has laid out an alley, the street and alley both intersecting, at the north line of the complainant’s land, with Fifty-second street. Access is thus given from a public street to every lot on the complainant’s subdivision, and the necessity of seeking access to his property by means of the private way over the defendant’s land has ceased to exist. Even if it should be held that the complainant still holds and owns said right of way and that the same has not been extinguished as the defendant alleges, it is difficult to see how it can be regarded as a right of any substantial value. It is absurd to suppose that purchasers of city lots would invest their money in such lots, depending for access thereto upon a private way over the lands of another proprietor, and certainly after access is given to every lot by a public street abutting thereon, the existence of a right to such private way would scarcely be deemed a recognizable factor in their market value.

Even then if the complainant still owns the right to said private way, the denial of his right by obstructing said way, cannot be held to present a strong and mischievous case of pressing necessity, upon which‘a court of equity should feel constrained to grant relief before the complainant’s right had been established at law. No interest will be jeoparded, no irreparable damage incurred, by the delay necessary to a trial of his rights in that tribunal.

But the question still remains whether, in view of all the evidence, the complainant’s legal right to said private way can be said to have been clearly established. His right is éxplicitly denied by the answer, and the evidence, to say the least, ■tends to show that said right was extinguished by the sale of the entire tract of land now owned by the defendant for a delinquent assessment, and a subsequent execution of a tax deed to the purchaser.

It cannot be doubted that the title conveyed by the tax deed, if said deed is valid, is paramount to all other titles and interests in said land. It must therefore be held, if valid, to have cut off and extinguished the complainant’s easement.

The evidence afforded by the record as to the defendant’s title to the east two-thirds of the ten acre tract in question is as follows: The defendant, by his answer, claims to have obtained title through Martina Sproehnle, who, as he alleges, was the owner of said east two-thirds of said tract. The evidence shows a conveyance, dated May 10, 1873, of the south half of said east two-thirds from Martina Sproehnle to Jacob Scheuler, and a conveyance of the same date of the north half from Martina Sproehnle to the defendant. The answer alleges a subsequent conveyance of said south half from said Schueler to the defendant, but such conveyance is not shown by the evidence. It appears that before the defendant purchased or had any interest in any portion of said tract, an assessment was levied on the whole of said east two thirds for an improvement of Scammon avenue, such assessment being confirmed by the County Court of Cook county April 9, 1873. This assessment seems to have been regularly returned delinquent by the town assessor, and on application by the proper officer, judgment was rendered for said assessment against said land by said county court at its August term, 1874. Said land was sold in pursuance of said judgment October 2, 1874, one Coleman becoming the purchaser. The tax certificate was assigned by Coleman to John McCaffrey, and a tax deed was .subsequently executed to him. On the 21st day of October, 1879, and after the execution of said tax deed, McCaffrey and wife conveyed said land to the defendant. Said tax deed is apparently regular on its face, and a judgment and precept apparently valid, were read in evidence, and nothing was shown by the complainant tending to invalidate said deed. .The chancellor, as it seems, disregarded the tax title, upon the theory that, as the defendant was the owner of the land at "the time of the tax sale, the purchase by him of the tax title is to be regarded in law only as' a mode of paying the assessment levied upon his land, and that such title could not therefore be set up in bar of the complainant’s title to his easement.

The rule is well settled that persons who, by reason of their ■ownership of lands or otherwise, are under a legal or perhaps .a moral obligation to pay taxes and assessments thereon, are precluded by the policy of the law from becoming purchasers ■of such lands at a tax sale. In case of a purchase, such ■party obtains no independent title, the purchase being deemed in law only a mode of paying the taxes. Choteau v. Jones, 11 Ill. 300; Frye v. Bank of Illinois, id. 367; Voris v. Thomas, 12 id. 442; Ralston v. Hughes, 13 id. 469; Baily v. Doolittle, 24 id. 577; Bracken v. Cooper, 80 id. 221; Busch v. Huston, 75 id. 343; Lewis v. Ward, 99 id. 525; McAlpine v. Zitzer, 119 id. 273. The same rule would probably be held to apply to one under a legal obligation to pay the taxes who afterwards purchases an outstanding tax title acquired by a stranger.

But we are of the opinion that this rule does not apply to the facts in this case. The assessment for which the land was sold was levied before the defendant acquired any interest" in said land. At the time he purchased it was a subsisting lien, and his relations to it, so far as the duty of payment is ■concerned, were in no respect different from what they would Bave been to any other incumbrance on the land. He must be deemed to have taken his title subject to the lien, but in the absence of any express or implied covenant or undertaking to pay it, he assumed no legal liability in respect to it. In Chambers v. The People, 113 Ill. 509, a party purchased at a. judicial sale lands upon which certain taxes had been levied and at the time of the sale were due and unpaid. The decree-found the amount of taxes due and ordered the land sold subject to the taxes as an incumbrance. The question having-arisen as to whether the purchaser became personally liable-for said taxes, this court said: “There is nothing to show that, appellant, in making his purchase, or in any other way, ever assumed or promised to pay the taxes on these lots, or any part thereof. Appellant, stands in the same position as any other-grantee whose deed is made subject to an existing incumbrance. If he assumes to discharge the same by paying &, given amount, as, with a part of the purchase money retained for that purpose, he becomes personally responsible to the holder of the incumbrance; but by simply taking a conveyance subject to a prior lien, imposes no personal liability on the grantee to remove the same, but he takes the land subject' to the amount of the incumbrance.”

The reason why an owner of land is disqualified to purchase it at a tax sale is, that permitting him to become such purchaser would enable him to take advantage of and reap a. benefit from his own neglect of a legal duty. But where the-owner holds by a title- acquired subsequent to the levy of the tax, and has not assumed its payment or in any way become-liable to see it paid, that reason manifestly does not exist.. There no legal or moral duty is neglected by failing to pay the tax. The doctrine is well stated in the separate opinion, of Dixon, C. J., in Smith v. Lewis, 20 Wis. 350, as followsr “It will be found, on examination of the adjudged cases, that the turning point in all of them was, the obligation of the party setting up the title to pay the taxes. If he was under such obligation, either from having been in possession and liable to pay taxes at the time of the assessment, or from their having been properly assessed against him, or by reason of any covenant or promise to the party against whom he claimed the title, the deed in such eases has been held unavailing. It is void because it was obtained in violation of the duty of the person claiming title under it. But the mere purchase of the premises from the mortgagor or owner after the assessment and sale and before redemption, or possession of them at the expiration of the time for redeeming, imposes no obligation to pay or redeem.”

The foregoing opinion, though not concurred in by the majority of the court, was afterward cited with approval by the same court, and its principles adopted, in Lybrand v. Haney, 31 Wis. 230. There certain tax deeds to the plaintiff executed in pursuance of sales for unpaid taxes levied before he became the owner of the lands, were sustained. The court, in holding that the general rule precluding the owner of lands from purchasing them at a tax sale did not apply, said: “He was under no legal obligation to pay taxes assessed upon the lands before he became the owner thereof, or before he went into-possession claiming to be such owner. He could pay such taxes or abstain from doing so as he pleased. Hence the taking of tax deeds upon certificates issued on the sales for the non-payment of taxes instead of paying the taxes was no-violation of any duty or obligation.”

The rule is stated in Moss v. Shear, 25 Cal. 38, as follows: “If the defendant was under any legal or moral obligation to pay the taxes, he could not, by neglecting to pay the same and allowing the land to be sold in consequence of such neglect, add to or strengthen his title by purchasing at the sale himself, or by subsequently buying of a stranger-who purchased at the sale. Otherwise he would be allowed to gain an advantage from his own fraud or negligence in failing to pay the taxes. This the law does not permit, either directly or indirectly. On the contrary, if the defendant was under no legal or moral obligation to pay the taxes, there is no principle of law or equity which precludes him from purchasing at the sale, although in possession at the time the assessment was made or when the land was sold.” See also, Bowman v. Cockrill, 6 Xan. 311; 1 Blackwell on Tax Titles, (5th ed.) sec. 566, et seq.

It follows from what has been said, that the tax deed read in evidence by the defendant in this case, is apparently valid, and establishes an apparent extinguishment of the complainant’s easement over the defendant’s land. The only conclusion which need be drawn in this case, based upon said tax ■deed, is, that the complainant’s legal title is so uncertain, and so far in dispute, that a court of equity ought not to take jurisdiction. A court of law is the proper tribunal for the trial and settlement of legal titles, and the complainant should therefore be remitted to that court for the establishment of his right.

The decree of the Superior Court will be reversed and the -cause remanded to that court, with instructions to dismiss the bill at the complainant’s costs, but without prejudice to his right to pursue any proper remedy in a court of law for the ■establishment of his legal title, or to again apply to a court of equity for relief after having established his right at law.

Decree reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Shope

license: Public Domain

text:
    The People ex rel. Daniel C. Hubbard v. Elliott Anthony.

      Filed at Ottawa June 15, 1889.

    a 1. Bill of exceptions—settling the bill — as a judicial act. The signing and sealing of a bill of exceptions is both a ministerial and a judicial act. The determination of what it shall contain is judicial in its nature. The judge may, in the first instance, resort to all available means to determine the facts and to secure accuracy in making up the record.

      2. Same—amendment at a subsequent term. Where a bill of exceptions, by mistake or through inadvertence, fails to present matters material to the cause as they transpire on the trial, the party making the same will have the right, in a proper case, to have an amended bill signed and sealed by the same judge presiding at a subsequent term of the same court in which the cause was tried, upon proper notice to the adverse party.
    3. The power of the court to amend its record, in other respects, at a term subsequent to that at which the record was made, upon the parties in interest being again brought into court by the service of proper notice, and saving rights that may have intervened, has frequently been upheld.
    4. Same—memoranda to amend by. Where a bill of exceptions is once signed and sealed by the court and filed in the time required, it becomes a part of the record of the court, and if it is sought to amend or alter the same at a subsequent term, there must be some minute of the judge or memorandum of the court by which to make the proposed amendment or change.
    5. On the trial of a cause by the court, without a jury, judgment was entered for the plaintiff, and the defendant, in the time fixed, prepared his bill of exceptions, in which appeared many exceptions, but none to the finding or judgment of the court or to the overruling of a motion for a new trial, which was duly signed, sealed and filed. The judgment entered by the clerk showed the entry of a motion for a new trial and an order refusing the same, and then proceeds, “whereupon the defendant, having entered his exceptions herein, prays an appeal,” etc.: Held, that if such entry could be look,ed to, it was too indefinite to justify the court in amending the bill, as it failed to show to what the exceptions applied.
    6. Same—mandamus—to compel the signing of a bill of exceptions. Mandamus will lie to compel a judge to sign and seal a bill of exceptions in a cause tried before him, but he must at last determine the accuracy of the bill which he verifies.
    7. But when a judge has once signed and sealed a bill of exceptions, and he is sought to be compelled to sign an amended one at a subsequent term, and he states, in answer to a petition for mandamus, that he is unable to determine, from his notes or other momoranda, or from other sources of information, that exceptions were in fact taken on the trial, as set forth in the amended bill tendered, this court is without power to coerce his conscience, and compel him to sign and seal the same.
    8. Mandamus—as to matters of discretion. The rule is uniform, that whenever discretionary power, or the exercise of judicial discretion, is vested in an officer, and he has exercised that discretion, superior courts will not interpose to coerce and control its exercise.

      Appeal from the Appellate Court for the First District.
    Mr. Franklin P. Simons, for the appellant:
    Greater certainty is required in the answer of respondent than in a plea in bar, and every intendment is made against the answer. People v. Kilduff, 15 Ill. 502; High on Ex. Leg. Bern. sec. 492.
    We contend that it was the duty of respondent, as a judge, if he had no personal recollection or memoranda, to ascertain, either by examination of witnesses or by the affidavits presented, what the exceptions were, as having been entered by the defendant. People v. Williams, 91 Ill. 91; People v. Gary, 105 id. 264.
    It seems to be settled that an amendment of a bill of exceptions will be allowed at a term subsequent to that at which the trial was had, upon due notice, if there is something in the record to amend by. Coughran v. Gutcheus, 18 Ill. 390; Brooks v. Bruyn, 40 id. 64; Wallahan v. People, 40 id. 104; Church v. English, 81 id. 442; Goodrich v. City of Minonk, 62 id. 121; Newman v. Ravenscroft, 67 id. 496 ; Heinsen v. Lamb, 117 id. 553.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

This was a petition for mandamus, presented in the Appellate Court for the First District, to compel respondent, Anthony, who is one of the judges of the Superior Court of Cook county, to sign an amended bill of exceptions in the case of McCormick et al. v. Hubbard et al., tried in the Superior Court before said judge, without a jury. The trial of that cause resulted in a finding and judgment for plaintiffs. An appeal was prayed to the Appellate Court by Hubbard, defendant, and allowed upon the terms fixed in the order of the Superior Court, which order extended the time in which to file a bond and bill of exceptions thirty days from the entry thereof. Within the time so fixed, an appeal bond was filed and a bill of exceptions presented by the relator, Hubbard, which was duly signed and sealed by the judge, and filed. After the term at which the cause was tried, and the time limited by the order of court for filing the bill of exceptions had expired, it was discovered that the bill of exceptions, as signed, contained no exception by the defendants to the finding of the court, the overruling of the motion for a new trial, or judgment. Upon notice to the adverse party, the defendant, Hubbard, at a subsequent term, appeared in the Superior Court, Judge Anthony presiding, and presented an amended bill, showing such exceptions, duly made at the trial of the cause, and asked that the same be then signed and sealed by the judge, which was refused. The Appellate Court denied the writ of mandamus, and this appeal is prosecuted from that order.

Where the bill of exceptions filed, by mistake or through inadvertence, fails to fairly present matters material to the cause, as they transpired on the trial, the right, in proper cases, to have an amended bill of exceptions signed and sealed by the "same judge, presiding at a subsequent term of the same court in which the cause was tried, upon proper notice to the adverse party, has received repeated recognition by this court, (Brooks v. Bruyn, 40 Ill. 64, Wallahan v. The People, id. 104, Goodrich v. City of Minonk, 62 id. 121, Newman v. Ravenscroft, 67 id. 496,) and was expressly sanctioned in the case of Heinsen v. Lamb, 117 Ill. 553. The power of the court to amend its record, in other respects, at a term subsequent to that at which the record was made, upon the parties in interest being again brought into court by the service of proper notice, and saving rights that may have intervened, has frequently been upheld. (Church et al. v. English, 81 Ill. 442; Cook v. Wood, 24 id. 295; McCormick v. Wheeler, 36 id. 114.) That the application was here made without unnecessary delay, and. upon proper notice to the adverse party, accompanied by a copy of the amendment proposed, and that the application was in other respects sufficient, is not questioned; and the matter proposed to be incorporated into the record was necessary and material to the presentation of respondent’s case on appeal or writ of error. Fireman’s Ins. Co. v. Peck, 126 Ill. 493.

It would seem that appellant (relator) adopted the correct practice in his application for an amended bill of exceptions. It is not claimed that there was any memoranda, note or other matter remaining on file or of record, or in possession of the judge, made by him, from which it could be determined that exception had been taken, as stated in the amended bill of exceptions presented by the relator. However, the judgment entered by the clerk, after showing the waiving of a jury, etc., and the finding for plaintiff, etc., recites the entry of a motion for a new trial, the order overruling the same, and the formal entry of judgment, and then proceeds, “whereupon the defendant, Daniel C. Hubbard, having entered his exceptions herein, prays an appeal,” etc. It does not appear when the judgment was in fact written up by the clerk, or that it was made from any memoranda to which the court could properly refer in the matter of the correction applied for.

We have repeatedly held that amendments to the record should not be allowed after the close of the term of court at which it was properly made, unless there are some memoranda, minute or note of the judge, or something appearing on the record or files, to amend by. (Authorities, supra.) If, however, it be héld that the language quoted from the entry by the clerk, “whereupon the defendant, Daniel C. Hubbard, having entered his exceptions herein,” is such a memorandum appearing on the records of the court as contemplated, it is apparent that such memorandum is indefinite, and does not necessarily show that exception was taken to the finding of the court, the overruling of the motion for a new trial, or the judgment itself, or either of them. As we shall see hereafter, such memorandum was referred to by the judge upon the application for the amended bill of exceptions, and it was found by him not to be a memorandum from which he could determine the correctness of the amended bill of exceptions.

The signing and sealing of a bill of exceptions by the trial judge is both a ministerial and judicial act. The determination of what it shall contain is necessarily judicial in its character. (Hoke v. Strubel, 121 Ill. 321.) The judge must determine judicially, in the first instance, what the bill of exceptions shall contain, that it may truly and fairly present the facts and rulings occurring on the trial of the cause; and may, in the first instance, resort to all available means to determine the facts, and to secure accuracy in making up the record. The People v. Williams, 91 Ill. 91; The People v. Gary, 105 id. 264.

It is well settled that mandamus will lie to compel a judge to sign and seal a bill of exceptions in a cause tried before him; but he must at last determine the accuracy of the bill which he verifies. (Ex parte Bradstreet, 4 Peters, 102; Marburg v. Madison, 1 Cranch, 127; The People v. Pearson, 2 Scam. 189, and cases supra; Hawes v. The People ex rel. Pulver, ante, p. 123.) However, what was here sought to be done was not to procure the signing and sealing of a bill of exceptions in the first instance, but it was to amend and alter a record already made up and complete.

The answer of Judge Anthony to the petition for mandamus shows, as the petition does, the presentation, signing and sealing of the original bill of exceptions, as presented by the relator, without alteration. Upon its being filed, it became part of the record of the cause, and changes and alterations in it, thereafter made or to be made, rested, not upon the principles controlling the signing of bills of exception in apt time in the first instance, but was controlled by the same rules and principles that relate to the alteration of any other part of the record in a cause. Heinsen v. Lamb, supra.

In respect of the recitals in a judgment as enteredmp by the clerk, before referred to, the answer of the judge is full and explicit to the point, that a reference thereto gave him no aid in determining whether exceptions were taken to the rulings of the court, as alleged by the relator. It is to be remarked, that in the original bill of exceptions numerous exceptions are noticed, and, whether the recital refers to such exceptions or to others made and not noted, the judge returns, in substance, he is unable to determine. By the amended answer of respondent it is alleged, that the original bill of exceptions, as signedand sealed by him, “fully and fairly states all of the facts attending, and all exceptions taken at said trial, to the best of the knowledge, information and remembrance” of respondent. Whatever may have been the reasons stated, at the time of the application, for his refusal to sign and seal the amended bill of exceptions, it clearly appears that respondent now places such refusal, whether correctly or incorrectly, upon the ground that he is unable to determine, from his notes or other memoranda, or from other sources of information, that exceptions were in fact taken at the trial, as set forth in the amended bill of exceptions, and alleged by the relator.

It appears that the affidavits in support of the motion of relator were considered, the records and files examined by respondent, and he solemnly returns that he was and is unable to determine affirmatively, as he must, that such exceptions were taken. Although the rule applicable to the amendment of the record applies to amendments to be made to bills of exceptions at a term subsequent to the making of the record, yet the judge who is called upon to verify the fact must determine, as a judicial matter, the correctness of the proposed amendment. If he was unable to verify the truth of the matter contained in the amended bill of exceptions, upon due consideration of the facts presented, this court is without power to coerce his conscience and compel him to perform that judicial act. It is irue there is much evidence in this record, by way of affidavits filed with and in support of the petition, strongly tending to show that the exceptions were in fact entered, as alleged by .relator; but if it be conceded that these affidavits may be considered, it is not competent for the Appellate Court, or for this court, to try the question of fact, and determine for the "trial judge matters that are left to his legal discretion and judgment. The presumption is, that the judge, acting under the solemnity of his oath, will honestly and faithfully perform the duties of his high office; and where, as here, after having heard and considered the matter, he returns that the original bill of exceptions fully and fairly states all of the facts attending, and all exceptions taken at the trial, the Appellate Court and this court are powerless to compel him to sign and seal another bill of exceptions, containing a different state of facts, and to which the trial judge, acting upon his judicial conscience, was unable to assent. As before said, the rule is uniform, that wherever discretionary power,, or the exercise of judicial discretion, is vested in an officer, and he has exercised that discretion, superior courts will not interpose to coerce and control its exercise. Wilson v. City of Albany, 12 Johns. 414, and supra.

In our judgment, the Appellate Court properly denied the ■writ of mandamus, and its judgment will be affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this cause in the Appellate 'Court, took no part in its decision here.


author: Mr. Justice Craig

text:
    Thomas W. Shreve et al. v. The Town of Cicero.

      Filed at Ottawa June 15, 1889.

    1. Administering oatsb—power of town cleric. Section 112, of article-12, of the Township law, provides that the town clerk may administer-oaths and take affidavits in all cases required by law to be administered to or taken by town officers, but there is no general law empowering him to administer oaths in other cases.
    2. The special charter of a town provided, that in proceedings to' levy a special assessment the commissioners selected to make the assessment might be sworn before the town clerk. The town, however, adopted article 9 of the act relating to cities and villages: Held, that as the provision in the charter was not repugnant to anything in that article, the town clerk might properly administer the oath to the commissioners appointed to make a special assessment.
    3. Speoiaxi assessment—in town having a special charter, hut homing• adopted article 9 of the general Incorporation law. Upon the adoption of article 9 of the act relating to cities and villages, by a town acting' under a special charter, a proceeding to levy a special assessment must, conform to' that article, which will control whenever it conflicts with the charter. But the charter continues in force in so far as it does not conflict with article 9 of the statute.
    4. Same—for local improvement in another town. The property in one town can not be specially assessed for the purpose of making local improvements in another and adjoining town. But where no suitable outlet for a sewer can be found in the town making the same, its extension a short distance in an adjoining town, to a proper outlet, is not a violation of the rule.
    5. Same—ownership a disqualification of commissioner—evidence to-show the fact. A person owning property to be specially assessed for a public improvement is not competent to act as a commissioner. Such a. person is interested in the assessment, and his interest disqualifies him from acting. But his ownership of land can not be shown by the affidavit of one who has examined the records, and found conveyances to-him from the index books.
    6. Evidence—to prove title to real estate. The title to or ownership of land can not be established, in a judicial proceeding, by the affidavit, of a person who has examined the tract index book of the public records, and who therein deposes that he found a deed or deeds on record! to the party in whom the title is alleged to be vested.

      Appeal from the County Court of Cook county; the Hon, Bichabd Prendergast, Judge, presiding.
    Messrs. Wilson & Moore, for the appellants.
    Messrs. Whitehead & Packard, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court;

Three objections are urged against the special assessment: First, the commissioners appointed by the court to make the assessment were not sworn before an officer authorized to administer oaths; second, one of the commissioners was ineligible on account of interest, being the owner of lands assessed; third, a part of the money raised by the assessment was to be expended in another town, contrary to law.

The town of Cicero is incorporated under a special charter, which will be found in volume 3 of Laws of 1869, page 666. After the town was incorporated it adopted article 9 of the City and Village act. By its charter, the town of Cicero was authorized to levy special assessments for improvements; but the present assessment was not made under the charter, but it was made under article 9. Section 138 of the article provides, that “upon the filing of such petition the court shall appoint three competent persons as commissioners, who shall take and subscribe an oath, in substance as follows,”—giving the form of the oath; but no provision of the statute declares what officer shall administer the oath. Here, after the commissioners were appointed, they were sworn before Ed. S. Austin, town clerk, and it is insisted that he had no authority to administer the oath.

Section 112, of article 12, of the Township Organization law, provides that the town clerk may administer oaths and take affidavits in all cases required by law to be administered or taken by town officers; but we find no provision of the statute that empowers a town clerk to administer oaths in other cases. Section 2, of chapter 101, in relation to oaths, specifies certain officers who may administer oaths, but a town clerk is not among the number. So far, therefore, as the statute is concerned, the town clerk does not seem to be authorized to administer an oath in a ease of this character. But upon an examination of the charter of the town of Cicero it will be found that section 17, in case of proceedings to levy a special assessment, provides that the commissioners selected to make the assessment may be sworn before the town clerk or some other officer authorized to administer oaths. Had the proceedings which were instituted by the town of Cicero been conducted under the charter, no question could arise in regard to the power of the town clerk to administer the oath, as it is expressly conferred. Upon the adoption of article 9, the proceedings in a special assessment would have to conform to that article, and that article would control wherever it conflicted with the charter; and if article 9 had required the oath of the commissioners to be taken before any named officer, the town clerk would have no power to administer the oath. But the charter of the town of Cicero may be regarded in force, so far as it does not conflict with article 9 of the statute, and as the charter expressly authorizes the commissioners to be sworn before the town clerk, and as article 9 is silent as to the officer before whom they may be sworn, we are inclined to hold that the town clerk was authorized to administer the oath.

As to the second objection relied upon by appellants, we do not regard the evidence produced before the court sufficient to establish the fact that one of the commissioners was interested. The proof relied upon was an affidavit of J. B. Skinner, to the effect that on the 8th of December, 1888, he made a personal examination of the tract index books of Haddock, Vallette & Bickcords, purporting to show the title to block 32, in Bidgeland. From such examination affiant is of opinion, that at the time of making such assessment John Carne, Jr., was the owner of certain lots in said block, together with other property mentioned in said assessment roll; that said tract book shows a warranty deed to John Carne, Jr., of lots 3 and 4, recorded May 13, 1879; also a warranty deed to Carne, Jr., of lots 12 and 13, recorded August 2, 1880; and shows no conveyance of said premises by Carne prior to the making of the assessment. The statute required the court to appoint three competent persons as commissioners to make the assessment, and we think it is plain that a person who owned property to be assessed would not be a competent person. Such a person would be interested, and his interest would disqualify him from acting in making the assessment. But we are aware of no authority under which the fact could be proved that John Carne, Jr., one of the commissioners, owned property on the list to be assessed, by an affidavit of some person who had examined the record of abstracts. The title to or ownership of land can not be established, in a judicial proceeding, in that way, and as no other proof of the fact was offered, the court very properly overruled the objection.

We now come to the third objection,—that a part of the money raised by the assessment was to be expended in another town. The ordinance providing for.the improvement was passed on the first day of May, 1887. It provided for a pipe sewer on Austin avenue, from Chicago avenue to the south line of Madison street, and a wooden sewer from the south line of Madison street to the north line of Thirty-ninth street, thence east along the north line of Thirty-ninth street a distance of 1400 feet. On the 16th day of June, 1888, long after the assessment had been levied, the board of trustees of the town of Cicero, for the purpose of getting a better outlet for the sewer, made a change in the route, and in lieu of running 1400 feet from Austin avenue east on Thirty-ninth street, the sewer was extended directly south from Thirty-ninth street, in the town of Lyons, on a line with Austin avenue, about 1600 feet, to Mud Lake.

It may be conceded that the property in the town of Cicero could not be assessed for the purpose of making a local improvement in the town of Lyons, as held in Hundley v. Commissioners, 67 Ill. 661. But that doctrine has no application to this case. Here the location of the improvement, its nature and character, were settled by an ordinance, and the entire line of the sewer was in the town of Cicero. The assessment was made under this ordinance, no part of the improvement being in another town. Moreover, the extension of the sewer south, in the town of Lyons, from Thirty-ninth street to Mud Lake, can not be regarded as a local improvement in another town. Suppose no outlet could be found without extending the sewer a short distance into the territory of another town, we think the town authorities would be authorized, in such a case, to do so, without a violation of the rule announced in the case cited.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Wilkin

text:
    Henry P. Ide v. Elizabeth N. Sayer et al.

      Filed at Ottawa June 15, 1889.
    1. Insolvent debtors—jurisdiction—transfer of property prior to an assignrnent—jurisdiction to determine its validity—in the county court or in a court °f chancery. Where a failing or insolvent debtor, a few days before making an assignment for the benefit of creditors, conveys land to a third person in payment of a debt, the county court has no jurisfiction, on petition by the assignee, to declare such conveyance fraudulent, as being made in contemplation of making the assignment, and thus give his grantee an unauthorized preference'. This can be done by proper parties only in a court of equity.
    2. Whether a conveyance of land and a transfer of a draft or check by an insolvent debtor to another was made after the debtor had decided to make an assignment, and for the purpose of preferring the prior grantee to other creditors, is a question or issue triable only in a court having general equitable jurisdiction.

      3. If an insolvent debtor, on the eve of making an assignment for ihe benefit of creditors, and after making up his mind to do so, should prefer one creditor by making a conveyance or transfer of property to him, and then assign his other property, the remedy must be sought by the creditor sought to be defrauded, by appropriate steps in a court •of equity to enforce the equality contemplated by the statute.
    4. Same—equitable jurisdiction of county courts. County courts in this State have no general chancery powers, and none are conferred by the Assignment act. They may, however, exercise both legal and equitable powers to execute and carry out the provisions of that act.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook ■county; the Hon. Lobin C. Collins, Judge, presiding.
    Messrs. Tenney, Dbiggs & Hawley, for the appellant:
    If the statute had simply forbidden preferences and stopped there, a court of chancery would have been the only tribunal in which its provisions could be enforced; but it commits the custody of the property, and all questions regarding it, to the ■county court. The act being remedial, should receive a liberal construction. Chicago v. Dunn, 52 Ill. 260.
    Section 8 of the act relating to assignments gives the county •court power to administer upon the estate assigned, and to •compel the delivery to the assignee of any property or estate •embraced in the assignment. In construing the statute, this •court has held that the county court has jurisdiction to try .and determine claims of third persons to the property assigned; (Hanchett v. Waterbury, 115 Ill. 220;) claims by the assignee •or creditors that apparent liens upon property in the hands of the assignee are in reality void, as being preferences, within the meaning of section 13 of the Assignment act; (Freydendall v. Baldwin, 103 Ill. 325; Oil Co. v. Nat. Bank, 126 id. 584; Nat. Bank v. Behn, 126 id. 461;) that in the exercise of this jurisdiction it possesses both legal and equitable powers; (Field v. Ridgely, 116 Ill. 424;) and that its jurisdiction depends solely upon the question whether an assignment has in fact been made, and not upon its validity as to creditors. Farwell v. Crandall, 120 Ill. 70.
    A conveyance made in contemplation of an assigment, for the purpose of giving one creditor a preference, is void, as being within the meaning of the statute, and in fraud of its provisions. Preston v. Spaulding, 120 Ill. 208; Oil Co. v. Nat. Bank, 126 id. 684; Nat. Bank v. Rehm, id. 461.
    Mr. F. H. Tbude, for the appellees:
    When a creditor of a failing debtor demands payment or a. transfer of property to secure a debt, and the debtor upon such demand executes to said creditor such transfer of property, the creditor would take such property free from any claim of preference, even though the debtor immediately thereafter made an assignment. Preston v. Spaulding, 18 Bradw. 557.
    An assignment under the insolvent laws of one State can pass no title to real estate situate in another State. Burrell, on Assignment, 458, 459; Bishop on Insolvent Debtors, sec.. 258; Hutchinson v. Pershine, 16 N. Y. 167; Rhawn v. Pearce, 110 Ill. 350; May v. Bank, 122 id. 551; Haywood v. Collins,. 60 id. 328; Hawes on Jurisdiction of Courts, 87.
    Waiver and pleading to the merits can not confer jurisdiction upon a court where none is conferred by law. Hawes on Jurisdiction of Courts, secs. 10-12.
    As to the construction of statutes, see Steere v. Brownell, 124 Ill. 27.
   Mr. Justice Wilkin

delivered the opinion of the Court:

On the 30th of April, 1886, appellee James P. Sayer made-an assignment, under the statute, for the benefit of his creditors, naming appellant as his assignee. On the 28th and 29th of the same month he had conveyed and transferred to» his mother, Elizabeth N. Sayer, certain real estate in Dakota and Minnesota, a bank check, and several promissory notes. On the 28th of the following May, appellant filed his petition in the county court of Cook county, praying that said Elizabeth N. Sayer be compelled to deliver up to him said notes and draft, and convey to him the said real estate, and that she be enj oined from transferring or encumbering any part of said property. The prayer of the petition is based upon the ■ allegations that the transfers were made for the purpose of creating a preference in favor of Elizabeth N. Sayer over other creditors; that they were made in contemplation of the assignment which James P. Sayer then intended to make, and as a part thereof; that they were so made with the knowledge of said Elizabeth N. Sayer; that said transfers and said assignment were parts of one and the same transaction, and constituted, and were intended to constitute, an assignment with preferences, contrary to the statute. These allegations were denied by the answers of both James P. and Elizabeth 1ST., except as to the conveyance and transfer of said property, which they admit, and aver that they were made in good faith, in payment of a bona fide indebtedness, and not in contemplation of an assignment. Both answers reserve all right of exception to the petition.

The county court found the facts in favor of appellant, and granted the prayer of the petition. On appeal, the circuit court of Cook county held that the county court had no jurisdiction of the subject matter of the cause, and reversed and remanded, with directions to the county court to dismiss the petition, instead of making a final order to that effect in that court. On appeal from the order of reversal to the Appellate Court, the judgment of the circuit court as to the jurisdiction in the county court was sustained, but it was held that it was error to reverse and remand the cause. The judgment of the circuit court was for that error reversed, and the cause remanded to the circuit court, with directions to dismiss the petition at the cost of petitioner, and treating the reversal as a matter of form, only, Elizabeth N. Sayer was allowed her costs in that court. From that judgment of the Appellate Court appellant again appeals.

The principal question involved in the case is, had the -county court jurisdiction of the subject matter of the cause? It is not pretended that the property sued for was expressly included in the assignment, nor that it was in the possession •of the debtor at the time the assignment was made or when this petition was filed. On the contrary, the petition shows that prior to the assignment the legal title had been vested in Elizabeth N. Sayer, by deeds of conveyance, and the delivery ■of the notes and check.

The theory upon which the jurisdiction is sought to be ■sustained may be thus stated: The property in question was transferred after the debtor had decided to make an assignment, for the purpose of evading the statute forbidding pref•erences. The transfer of property by a debtor under such circumstances, and the assignment, constitute, in law, but one transaction, and are to he treated as an assignment with preferences. Therefore, this property is a part of the assigned -estate.

The argument of counsel is addressed to the second of the above premises, which being established and the conclusion reached, it is contended, that the property in question being thus embraced within the assignment, jurisdiction is given to "the county court to administer upon it, by chapter 10 of the Eevised Statutes, with power, under section 8, to compel conveyance of the land, and delivery of the notes and check to the •assignee. The fallacy of the argument consists in assuming -the first proposition. The very issue tendered by the petition and accepted by the answer is, were the conveyances and -transfer made after James P. Sayer had decided to make an assignment, and for the purpose of preferring his mother to •other creditors; and the question here is, did the county court have jurisdiction to try that issue. That it is an issue triable •only in a court of equitable jurisdiction, must be conceded. That county courts in this State have no general chancery powers, must also be admitted. That none are conferred by the Assignment act, (Rev. Stat. chap. 10,) is settled by Preston et al. v. Spaulding et al. 120 Ill. 208. That they may exercise both legal and equitable powers to execute and carry out the provisions of the act, under section 14, is clear, upon principle, and so decided in this court. But appellant is seeking to invoke equitable jurisdiction, not over the assigned estate, the assignee, debtor, creditor, or persons claiming the property expressly assigned, but he asks the county court to bring before it a stranger to the assignment proceedings, and compel her .to contest in that court her right to ownership to property to which neither the legal title nor possession is claimed to have passed to the assignee by the deed of assignment. In other words, the county court is here asked, not to carry out the provisions of the Assignment act, but to set aside fraudulent •conveyances and transfers of property by the debtor to a third party, and bring the property into the assigned estate, that it may be administered upon. This could only be done by proper parties, in a court of equity. (Preston et al. v. Spaidding et al. supra.) In White et al. v. Cotzhausen, 129 U. S. 329, it is held, that in such case the remedy must be sought by a creditor by “appropriate steps in a court of equity, to enforce the equality contemplated by the statute.” And in Boulton, v. Dement et al. 123 Ill. 143, we held that the right to question such conveyances and transfers belongs to the creditor not preferred, and the remedy is to him, and not to the assignee. To the same effect is White et al. v. Cotzhausen, supra. It would scarcely be contended that a creditor could enforce that right in a county court.

The judgment of the Appellate Court is in harmony with the decisions of this court heretofore rendered, and is in all respects affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    Asahel Gage v. John T. Davis.

      Filed at Ottawa June 15, 1889.

    1. Notice of tax sale and time of redemption—requirement, as to whether for a tax or a special assessment. A notice of a tax purchase addressed “To........, or whom it may concern,” stating that on September 13, 1873, A B purchased, and afterwards assigned the certificate of purchase to the party giving the notice, “at a sale of lots and lands for taxes and special assessments, authorized by the laws of the State of Illinois, the following described real estate, taxed in the name of W. B., to-wit:” (describing same,) and concluding: “Said taxes and assessments were levied for the year 1872, and that the time of redemption thereof from said sale will expire on the 13th day of September, 1875:” Held, that the notice was fatally defective in failing to state whether the lots were sold for a tax or special assessment, and that the words used could not be construed to mean both taxes and special assessments.
    2. Same—notice giving wrong date as to time ivhen redemption expires. The provisions of the statute requiring the purchaser at tax sale, or his assignee, to notify the person in possession of the lands, when the time of redemption will expire, is imperative, and a notice which specifies a wrong date can not be regarded as any notice at all.
    3. Tax sale—time of redemption—when the last day of the two years falls on a Sunday. A tax sale of land took place November 3,1876, and two years thereafter, November 3, 1878, fell on a Sunday: Held, that the time of redemption did not expire until November 4,1878, the case falling within the rule of the statute, that the time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it, also, shall be excluded.
    4. Cboss-ebbobs—when necessary. If the appellee is dissatisfied with the ruling of the court below, he can only call the decision in question by the assignment of cross-errors.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.

      Mr. Augustus N. Gage, for the appellant:
    The statute (clauses 10 and 11, sec. 1, chap. 131, Rev. Stat. 1874,) in relation to the computation of time has no bearing on this case, for these reasons :
    First—The statute fixes the time of redemption at two years from the date of sale, which may or may not be a Sunday, according to circumstances, and to say that it did not expire within that time, is repugnant to the statute limiting the right to two years.
    Second—The time of redemption would logically have to expire on the day specified,—Sunday,—before the law cited could be called into requisition, for unless the last day,—that is, the day when redemption expired,—fell on Sunday, said clause 11 would and could have nothing to act upon.
    Third—The act relied upon can have no application to the case at bar, as it only refers to the computation of the time within which an act is required to be done; and the only act required to be done here is the serving of the tax-sale notice, at least three months before the time of redemption would expire, and this was done in the case at bar several days before the last day. The law did not require the owner to redeem.
    Tvír. John P. Wilson, and Mr. Fbanklin P. Simons, for the appellee:
    The validity of a tax title depends upon a strict compliance with the statute. Altes v. Hinckler, 36 Ill. 265; Marsh v. Chestnut, 14 id. 223; Holbrook v. Dickinson, 46 id. 285 ; Gage v. Mayer, 117 id. 633.
    The first sale of the premises on September 13, 1873, was to Henry H. Gage, for the “State and county taxes.” The property was again sold the same year, on October 31, 1873, to Burley, for the taxes of the city of Chicago, so that the time of redemption did not expire until October 31, 1875. Gage v. Bailey, 100 Ill. 536.

      The notice of this sale is also defective in not stating whether the property was sold for taxes or for special assessments. It states that Gage purchased the property in question “at a sale of lots and lands for taxes and special assessments,” taxed in the name of William Betts. Said taxes and assessments were levied for the year 1872. The last clause relates back for the purpose of defining the scope of the general sale, and was not intended to state that this particular property was sold for both taxes and assessments. Gage v. Waterman, 121 Ill. 115.
    As to the lots sold November 3, 1876, the notice fails to give the correct time at which the redemption would expire. It fixes the time on November 3, 1878, which was a Sunday, and consequently the time expired on November 4, 1878. Bev. Stat. chap. 100, sec. 6, and chap. 131, sec. 1, clause 11.
   Per Curiam :

This is a bill filed by appellee to set aside two tax-deeds. The court below rendered a decree in accordance with the prayer of the bill, and from such decree appellant appeals to this Court.

The first deed was properly set aside because of the insufficiency of the following notice:

“To.......... or whom it may concern:

“This is to notify you, that, on the 13th day of September, 1873, Henry H. Gage purchased, and afterwards assigned the certificate of purchase to the undersigned, at a sale of lots and lands for taxes and special assessments, authorized by the laws, of the State of Illinois, the following described real estate, taxed in the name of Wm. Betts, towit: (except street) sublot 4, all of sublots 5 and 6 of Lots 13, 15, 16 and 17 in Block 2 west part of Samuel Ellis’ Addition to Chicago; said taxes and assessments were levied for the year 1872; and that the time of redemption thereof from said sale will expire on the 13th day of September, 1875. Asahel Gage.”

Section 216 of the Revenue Act requires the purchaser at a tax sale, or his assignee, to serve or cause to be served a. notice, which shall state when such purchaser “purchased the land or lot, in whose name taxed, the description of the land or lot he has purchased; for what year taxed or specially assessed; and when the time of redemption will expire.”

The notice above quoted fails to state whether the lots were taxed or specially assessed. It does not inform the owner whether his lots were sold for a tax or special assessment. It merely tells him, that his lots were sold at a general sale of lots and lands for taxes and special assessments levied for the year 1872. The words: “said taxes and assessments were levied for the year 1872”: refer back to and define the sale at which the lots in question were sold, but such words cannot be construed to mean that the lots were sold on September 13, 1872, for both taxes and special assessments. For these reasons the notice was insufficient under our rulings in Gage v. Waterman, 121 Ill. 115, and Stillwell v. Brammell, 124 id. 338.

The second tax-deed was issued to appellant on July 16, 1879, in pursuance of a tax sale on November 3,1876, for the fourth installment of the South Park assessment. No objection is made to any of the proceedings prior to the sale. But it is said that the notice served on the occupant of the premises, in which he was notified that the right to redeem would expire on the third day of November, 1878, was insufficient, for the reason that the third day of November, 1878, was Sunday, and hence that day should have been excluded in computing the time the owner was entitled to redeem. This position is predicated on two provisions of the Revised Statutes of 1874, as follows:

Section 6, chapter 100: “In computing the time for which any notice is to be given, whether required by law, order of the court or contract, the first day shall be excluded and the last included, unless the last day is Sunday, and then it also shall he excluded.”

Section 1, clause 11, chapter 131: “The time within which any act provided by law is to be done, shall be computed by excluding the first-day and including the last, unless the last day is Sunday, and then it also shall be excluded.”

Section 5, article 9, of the constitution, provides that the right of redemption from tax sales of real estate shall exist in favor of the owner for a period of not less than two years from the date of such sales. Section 210, chapter 120, of the Devised Statutes, provides that lands sold for taxes may be redeemed at any time before the expiration of two years from the date of sale. The redemption of lands from a sale for taxes is an act authorized to be done by law,—an act that seems to fall directly within the terms of the statute. If we are correct in this, then, as November 3, 1878, was Sunday, the time provided for redeeming the lands sold on November 3, 1876, did not expire until November 4, 1878. The provision •of the statute requiring the purchaser at the tax sale, or his assignee, to notify the person in possession of the lands when the time of redemption will expire, is imperative, and a notice which specifies a wrong date can not be regarded as any notice whatever, within the meaning of the statute. (Wisner v. Chamberlin, 117 111. 568.) From what has been, said, it follows, that the deed issued on the sale of 1876 was illegal, and passed no title.

It is insisted in the argument of appellee, that the amount the court required the complainant to pay as a condition precedent to vacating the deeds was too large. The appellee, however, has assigned no cross-errors, and that question does not arise on the record. If he was dissatisfied with the decision of the court, he could only call the decision in question by the assignment of cross-errors, which has not been done.

The decree of the Superior Court will be affirmed.

Decree affirmed.