author: Mr. Justice Scholfield

text:
    The Peoria, Decatur and Evansville Railway Company v. The People ex rel. D. P. Smith.

      Filed at Mt. Vernon January 25, 1886.

    1. Road and bridge tax—by whom to be levied—and of the action of the board of supervisors and of the county clerk, in respect thereto. The statute (sec. 119, chap. 121,) requires the commissioners of highways to levy the taxes for the sums found by them necessary to be raised for road and bridge purposes, not exceeding forty cents on the $100, and report the amount and the rate per cent so levied, to the supervisors of their towns, and requires the supervisors to submit them to the board of supervisors of the1 county, for action, at their annual September meeting; and where no taxes are sought to be raised under section 116 and the proviso to section 119, no-affirmative action of the board is required directing the extension of such, tax by the county clerk. No order of approval is required of the hoard.

      2. The record of the board of supervisors recited: “Now come the several supervisors, and file with the clerk the following levy: Fox, road and bridge, $300; Wade, road and bridge, $1550; Crooked Creek, road and bridge, $1000, ” etc.: Held, to show' an action on the part of the board, and that their affirmative act in filing the reports of such levies was conclusive that they were satisfactory, and were filed with the county clerk for the purpose of being extended by him upon the tax books.
    3. If the statements of the levy of a road and bridge tax, under section 119 of the Boad law, show the action of the commissioners of highways to-have been within their lawful authority, the board of supervisors can not reject and disregard the same; yet if it appears from the statements that they are not in truth what they purport to be, or that a majority of the commissioners have not concurred in levying the tax, or that the tax is levied for an unauthorized purpose, or that it exceeds the rate per] cent allowed by law, it would be the duty of the board to direct that the amount be not extended, and return the levies for correction, if susceptible of correction, and if not, that they be utterly disregarded by the county clerk.
    4. While the statute does not direct that any record of the board of supervisors be made in respect to the road and bridge taxes levied by the commissioners, yet some record should be made showing the action of the board. But any record from which it can reasonably be concluded that the statements of the commissioners were laid before the board, and the levies were not ordered by that body to be not extended, and that they were delivered to the clerk afterward, will be sufficient to justify the clerk in extending such taxes.
    5. The county clerk's duty of extending road and bridge taxes, under sections 116 and 119, is limited to extending the levy in the proper column, when the statements made by the highway commissioners are delivered to-him by the county board for that purpose.
    Appeal from the County Court of Jasper county; the Hon. James W. Gibson, Judge, presiding.
    This was an application for judgment for delinquent taxes-against the Peoria-, Decatur and Evansville Railway Company. There was in evidence a proper description of the-railroad property, affidavit of list of lands delinquent, and proof of publication of notice, etc. “It was then stipulated and agreed, by and between the parties to this proceeding, that all the taxes and assessments against the defendant in this suit, in said county, had been paid, excepting the road and bridge tax for the year 1884, levied in the townships-of Crooked Creek, $137.04; Wade, $133.44; Fox, $48.51 ; amounting in all to the sum of $319. And that said townships had adopted what is known as the ‘Labor System,’ in the Boad law. ” The following were then offered and read in evidence by the collector:
    "“State of Illinois,

      “To the supervisor of said toion •of Crooked Creek:

    “The commissioners of highways have ascertained and determined that the total amount of money necessary to be raised by tax on the real, personal and railroad property of the down of Crooked Creek, in the county aforesaid, the ensuing year, commencing on Tuesday next preceding the annual town meeting, 1885, for the following purposes, is as follows :
    For the making and repairing of bridges, - - $600
    For the payment of damages by reason of laying out
    roads and ditches, .... - 100

    For the purchase of implements, .... 200
    For the payment of overseers of highways, - - 100
    Total,.......$1000
    —Commencing on Tuesday next preceding the annual September meeting of the board of supervisors, 1884, making the total amount of money for the bridges and other purposes as above specified and enumerated, $1000, for raising which amount a tax has been levied on all the real, personal and railroad property in said town, of forty cents on the $100.
    “Witness our hands this the 2d day of September, A. D. 1884. • William Kilgore,
    John Bowers, Kenison Barker,

      Commissioners of Highioays.

    “Filed September 9, 1884.
    B. K. Powell, Clerk.

      “ State op Illinois, Jasper County, Town of Wade.

    “Board of Commissioners of Highways.

      “To the supervisor of said town of Wade:

    “The commissioners of highways of said town have ascertained and determined that the total amount of money necessary to be raised by tax on the real and personal property of the town of Wade, in the county aforesaid, the ensuing year, •commencing on Tuesday next preceding the annual town meeting, 1884, for the following purposes, is as follows, to-wit:
    For the making and repairing of bridges, - - $700
    For the payment of damages by reason of the opening,
    altering and laying out of new roads, - - ' 300
    For the purchase of the necessary tools, implements
    and machinery for working the roads, - - 200
    For the purchase of the necessary material for building and repairing roads and bridges, - - 150
    !For the pay of overseers of highways during the ensuing year,.......200
    —Commencing on Tuesday next preceding the annual town meeting, 1884, making the total amount of money for bridges and other purposes, as above specified and enumerated, fifteen hundred and fifty dollars ($1550,) for raising which amount a tax has been levied on the real and personal property in .said town, of thirty cents on the $100.
    “Witness our hands this 2d day of September, 1884.
    F. M. Boss,
    A. J. Wood,
    J. J. Kinsbl,

      Commissioners of Highways.

    “Filed September 9, 1884.
    H. K. Powell, Clerk.

      “State of Illinois, J Jasper County, > ss. / Town of Fox. )
    “The commissioners of highways of the town of Fox have and do at this their meeting immediately preceding the annual meeting of the county board, A. D. 1884, determine that the sum of three hundred dollars ($300) must be levied on both real and personal property of said town for road and bridge purposes.
    “Witness our hands this 2d day of September, A. D. 1884.
    James B. Wilson,
    Edward Kellum,

      Commissioners of Highways.
    “Filed September 9th, 1884.
    H. K. Powell, Clerk.”'

    Petitioner then offered in evidence the tax judgment, sale, redemption and forfeiture record; containing the list of delinquent lands and lots, and a description of the property of defendant, with the amount of tax due thereon, which record had been filed in the office of the county clerk of said county more than five days prior to the commencement of the term of court at which this application was made. And thereupon the petitioner rested his application for judgment, and the defendant appeared by J. S. Stevens, its attorney, and filed the following objections to the rendition of said judgment:
    “State of Illinois, ) 3 > SS Jasper County. )

      “In the county court, to the May Term, A. D. ’85.

    “In the matter of the application of D. P. Smith, treasurei- and collector of said county, for judgment for the delinquent taxes for the year A. D. 1884, etc.
    “And now comes the Peoria, Decatur and Evansville Railway Company, and shows to the court that it has- paid all the legal taxes lawfully levied and assessed, and charged upon the tax books against it, for said year in said county; but that it has not paid the tax denominated and charged against it upon said tax books as a road and bridge tax, and represented to be for road and bridge purposes, for the townships of Wade, Fox and Crooked Creek, in said county, and amounting against objector to $319; and that it is for this tax so remaining unpaid, that said treasurer and collector now asks judgment against objector, to which objector objects, for the following reasons:
    “First—Said tax was charged and extended on said tax book against objector, by the county clerk of said county, without authority, without any direction or order of the board of supervisors of said county, and for each of these reasons said charge or tax is illegal and void.
    “Second—Objector shows that said townships of Wade, Fox and Crooked Creek have adopted what is known as the ‘labor system,’ in the present Boad and Bridge law of said State, and they each levy their tax for road and bridge purposes in accordance with the requirements of said law in townships having adopted said Tabor system;’ that, as the law in such case requires, the commissioners of highways, in each of said townships, certified to their supervisors, respectively, the amount required for the various purposes specified in section 119 of said Boad and Bridge law for said year, and that said supervisors, as the law requires, laid the same before the board of supervisors of said county, at its September meeting, A. D. 1884, for its action, as is shown by the following clause taken substantially from the record of said meeting:
    “ ‘ Now come the several supervisors, and file with the clerk the following levies : Fox, road and bridge, $300; Wade, road and bridge, $1550; Crooked Creek, road and bridge, $1000.’
    “Objector further shows that no other notice than the foregoing was taken of said tax by said board; that no action . was taken by it on said tax; that no order or direction of any kind was made by said board to the said county clerk of said county, to extend said tax; that he extended and charged the same without authority; and that in consequence said, tax was extended and charged against objector unlawfully and without authority, and is therefore illegal and void, and. its collection illegal.
    “ Third—That the assessment and levy of said tax was not', certified to the county clerk of said county as the law requires,, or by a person or persons having competent authority so to-do ; that he, in no event, had sufficient jurisdiction of the-same to give him the right or authority to extend it upon said tax books, or charge it against objector, and that in, consequence said tax is illegal and void.
    “Fourth—Said tax was improperly extended, and is illegal and void.
    “Fifth—Said tax was extended and charged without authority, and without the clerk of said county having jurisdiction of the same.
    ■ “Sixth—Other reasons appearing in the proceedings of the-assessment and levy of said tax. ”
    And the defendant, to sustain said objections, offered in. evidence the following extract from the record of the September meeting, A. D. 1884, of the board of supervisors of said Jasper county: “Now come the several supervisors, and file-with the clerk the following levies: Crooked Creek township, road and bridge, $1000; Wade township, road and bridge, $1550 ; Fox township, road and bridge, $300.”
    It was then stipulated and agreed by and between the parties to this proceeding, that the foregoing extract is the-only matter in the record of said September meeting of said board of supervisors concerning the levy of said road and. bridge tax, or referring thereto in any way, and that no action of said board was ever taken with reference to said taxes other than shown by said record, and thereupon the defendant rested its objections. . .
    This being all the evidence offered on either side, the court-overruled the objections and rendered judgment as prayed. by the collector. The railroad company brings the case to this court by appeal, and assigns errors, bringing in question, this ruling of the court.
    Messrs. Stevens, Lee & Horton, and Mr. Hale Johnson, for the appellant.
    Mr. James W. Gibson, and Mr. Ben. F. Harrah, State’s, attorney, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court r

Section 119, of chapter 121, entitled “Roads,” etc., (2 Starr & Curtiss’ Annotated Statutes, p. 2168,) reads thus-: “The highway commissioners of each town shall annually ascertain, as near as practicable, how much money must be raised by-tax' on real, personal and railroad property, for the making- and repairing of bridges, the payment of damages by reason of the opening, altering and laying out of- new roads and ditches, the purchase of the necessary tools, implements and machinery for working roads, the purchase of the necessary material for building or repairing or draining roads and bridges, the pay of the overseer of highways during the ensuing year, and for the payment of all outstanding orders drawn by the commissioners on their treasurer, commencing on Tuesday next preceding the annual meeting of the county board in September,—which tax shall be extended on the tax books according to the assessment of the current year r and shall levy a tax on all the real, personal and railroad property in said town, not exceeding forty cents on the $100 ; and they shall give to the supervisor of the township, and in Cook county to the county board, a statement of the amount necessary to be raised, and the rate per cent of taxation, signed by said commissioners, or a majority of them, on or-before the Tuesday next preceding the annual September meeting of the board of supervisors, or the county board of Cook county, who shall cause the same to be submitted to said board for their action at such September meeting of said board. ”

Counsel for appellant insist that this requires the board of supervisors to take affirmative action upon the reports of the commissioners of highways, which affirmative action is jurisdictional, and that therefore the county clerk extended the taxes here in question without authority of law. But what affirmative action does it require ? It can not be in declaring the tax to be levied, for language can not be plainer than that which declares that the commissioners of highways shall levy the tax. The sole difficulty is in ascertaining for what purpose the statements of the amounts necessary to be raised, and the rate per c.ent of taxation, are to be laid before the board of supervisors for their action.

It is stipulated that these townships had adopted what is known as the “labor system” in the Boad law. Under that system it is provided by section 110, chapter 121, (2 Starr & Curtiss’ Annotated Statutes, p. 2167,) that “every overseer of highways shall deliver to the supervisor of his town, * * * at least five days previous to the annual meeting of the board of supervisors, the lists furnished by the commissioners of highways, containing the land and personal property road tax, with an affidavit thereto, sworn to before the supervisor of the town, or some justice of the peace of the county, that on all tracts of land or railroad property on such list opposite which the word ‘paid’ is written, such tax is paid, and that on all tracts of land on railroad property on such list opposite which the word ‘paid’ is not written, such tax is due and remains unpaid, according to the best of his knowledge and belief.” The 116th section of the same statute makes it the duty of the supervisors of the several towns to receive the list when delivered pursuant to section 110, and lay the same before the board of supervisors of the county. And the next section (i. e., 117,) provides: “It shall be the duty of the board of supervisors * * * to cause the amount of arrearages0 of the road tax returned by the overseer of highways, to the supervisors, as provided in section 110 of this act, to be levied on the lands returned, and to be collected in the same manner that other taxes of the county are levied and collected, and to order the same, when collected, to be paid over to the commissioners of highways of the town. ” So, also, by the proviso to section 119, where an additional tax has been voted at a town meeting for repairing roads and bridges, the board of supervisors shall cause the same to be extended on the tax books.

Manifestly, therefore, it was designed by the General Assembly that the tax-payers should have the guaranty of protection against unauthorized and excessive burdens of taxation, in these respects, afforded by the supervision of the board of supervisors. Although that board could not reject the action of the commissioners of highways, when within their lawful authority, yet we think, beyond question, that if it appeared from the statements laid before the board, that they were, in truth, not what they purported to be, or that a majority of the commissioners had not concurred in levying the tax, or that the tax was levied for a purpose not authorized by law, or that it exceeded the rate per cent allowed by law, it would be the duty of the board to direct that the amounts be not extended, but that the statements be returned for correction, if susceptible of correction, and if not, that they be utterly disregarded by the clerk. In respect to these matters, the duty under these sections is not on the clerk, as it sometimes is, but on the board of supervisors, and the clerk’s duty is limited to extending the levy in the proper column when the statements are delivered to him for that purpose. It would, moreover, seem desirable that the statements required by section 119 should be before the board of supervisors, to enable them to intelligently make the requisite orders under section 116 and the proviso to section 119, in order that the amounts of such taxes be included and extended with the tax assessed under section 119, as elsewhere required. But in the present instance there were no taxes to be extended either under section 116 or the proviso to section 119, and so no-orders of the board in that regard could be made. All that was to be done was therefore simply to cause the statements contemplated by section 119 to be delivered by the board to the clerk, that he might extend the levies in the proper column. There was no order of rejection or temporary suspension required by the facts.

It will be observed the statute requires no order of'approval to be entered. ' It does not even direct that - any record in such eases .be made. Still, inasmuch as a record is the proper mode of showing the action of the board, it will be conceded there should be some record, and to avoid all question and doubt in such cases, it should fully recite the action of the board. But any record from which it can reasonably be concluded that the statements were laid before the board, and the levies were not ordered by the board to be not extended, and that they were delivered to the clerk afterwards, would clearly be sufficient, because those embrace the material requirements of the statute. The record here professes to be; and we must, because it is uncontradicted in any way, assume as a fact that it is, the record of the board of supervisors, and not of the action of members of the board, apart from the board. It recites: “Now come the several super-sets and file with the- clerk the following levies. ” This necessarily implies that the levies were then before the board, for otherwise it is impossible that the several supervisors could then, as a part of the proceedings of the board, file them with the clerk. The affirmative act of filing them with the clerk is conclusive that they are satisfactory, and that they, are filed with the clerk to be extended, for ' otherwise the order would be that they he not filed. When filed with the clerk ■ they can be filed for no other purpose than. that of extension, and his duty, under the law, to. then proceed and extend the levies at once attaches. These views have, had our sanction in previous cases, and we are convinced that they should be adhered to. Gage v. Bailey et al. 102 Ill. 11.

There is another reason affecting the exercise of the discretionary powers of the board of supervisors why these statements should be laid before the board at its annual September meeting, in which every tax-payer has a vital interest, and yet which does not require that the board shall make any order respecting them. Seetion 58, of chapter 34, (1 Starr & Curtiss’ Ann. Stat. p. 662,) authorizes the board of supervisors “to appropriate funds to aid in the construction of roads and bridges, in any part of the county, whenever a majority of the whole board of the county may deem it proper and expedient. ” By the preceding section 25, of the same chapter, in the sixth clause, power is vested -in the board “to cause annually to be levied and collected taxes for county purposes, including all purposes for which money may be raised by the county by taxation.” And by section 122, chapter 120, (same edition of Statutes, p. 2065,) “the amount of all taxes to be raised for county purposes must be determined by the board at its annual September meeting.” It must be apparent that to know what amount should be raised to meet anticipated appropriations to aid in the construction of roads and bridges, it would be important to know what amount had been levied by the commissioners of highways in the several townships for those purposes. Moreover, in raising money for all discretionary appropriations, whether for roads and bridges, or for other purposes, in a moral point of view, at least, the board of supervisors owe the duty to the tax-payers, and the tax-payers have a right to demand, that the amount of taxation for other purposes shall be taken into consideration, and that the burden of taxation shall always be made as light as a wise regard for the public welfare will admit, and it is therefore reasonable to conclude that these considerations affect the action of the hoard, in some measure, in levying county taxes. It is true this is but information which might be afforded by the clerk without having the originals before the board, yet it is for the legislature, and not the courts, to prescribe what and by whom information shall be laid before the board. It might be an important protection to the tax-payer, in many instances, to have the supervision of the board of supervisors, instead of the county clerk, against imposition and illegal action in the matter of such taxes, and if so, then it would also be important that the originals themselves, rather than the conclusions thereon of the clerk, should be before them for information in the respect last considered.

We see no cause to disturb' the judgment below. It will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Mulkey

license: Public Domain

text:
    Ida Law et al. v. The People ex rel. Tax Collector.

      Filed at Ottawa January 25, 1886.

    1. Back taxes—abandonment thereof—sale of land under judgment not including back taxes. Where the State sells land in satisfaction of a tax judgment, it can not defeat the purchaser’s title by a re-sale of the same land for taxes which were due and owing when the judgment was rendered, and might have been included in it. Such sale will be taken as an abandonment of all back taxes.
    2. Forty-five lots were assessed as a single tract of land from 1873 to 1879, including the latter year. The tract was forfeited for the taxes of 1873 to 1878, inclusive, except for the year 1875. In 1880 the lots were assessed separately, and the current year’s taxes extended on each lot up to 1884, dropping the back taxes from the books. In 1884 the clerk apportioned the back taxes upon the lots. In 1880, however, judgment had been rendered against them for the taxes of 1879, and the lots were all sold at tax sale in 1881 to a purchaser who paid the taxes on them for the years 18R1 to 1883: Held, that the purchaser took the lots discharged from the back taxes, and that it was error to render judgment against the lots for such taxes as against the purchaser, the sale thereof being an abandonment of the back taxes.
    Appeal from the County Court of Cook county; the Hon. Richabd Pbenbebgast, Judge, presiding.
    Mr. Edwabo Roby, for the appellants:
    After subdivision of the tract into lots, and a partition of the lots among the heirs, an assessment by any other description than that subdivision, and in any other quantity than as single lots, is void. Rev. Stat. chap. 120, secs. 4, 58, 62, 63, 66, 76; Gage v. Ramsey, 73 Ill. 473; Howe v. People, 86 id. 288; Pitkin v. Yaw, 13 id. 253.
    Judgment was rendered against these lots for the taxes due on them in 1881. That is conclusive on the plaintiff, and on the status of the land, so far as that plaintiff is concerned. Williams v. Amroyd, 7 Cranch, 432; 3 Wheat. 246 ; Golston v. Hoyt, 3 Johns. 561; Gray v. Gillilan, 15 Ill. 453; Cole v. Favorite, 69 id. 457; Graceland Cemetery Co. v. People, 92 id. 619; Sheldon v. Patterson, 55 id. 507; Gaddis v. Leeson, id. 525.
    Mr. Geobge Willabd, and Mr. William Law, for the appellee.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The People, on the application of the collector, recovered a judgment in the county court of Cook county, at its July term, 1885, against certain lots belonging to the appellants, Ida Law and others, who bring the case here for review.

The judgment was for the back and forfeited taxes of 1873 to 1878, with the exception of the taxes of 1875. Up to and including the year 1879, these lots had all been assessed by a general description, or rather, descriptions, as one piece or single lot of land. In 1880, however, the lots, forty-five in number, were all assessed -separately, and the taxes for that year were so extended on the tax books, no notice being taken thereafter of the alleged back taxes until 1884, when the county clerk seems to have made an apportionment among the lots of the forfeited and back taxes, which, it is claimed, he had no power to do. In the view we take of the case it is not important to consider this question, as it is very clear the judgment will have to be .reversed on another ground.

It appears that the taxes of 1880 not having; been paid, judgments were regularly obtained against the lots for the amounts assessed against them, respectively, and that they were all sold at the general tax sale of 1881, to satisfy said judgments and costs, to Asahel Gage, who paid the taxes on them for the years 1881 to 1883, inclusive, and the current taxes for IS84. For the years 1880 to 1883, inclusive, no back or forfeited taxes were extended against these lots.

Without discussing any of the other questions presented by the record, we think it clear that when the State sells land in satisfaction of a tax judgment, it can not turn round and defeat the purchaser’s title by a re-sale, of the same land for taxes which were due and owing when the judgment was rendered and might have been included in it. A sale under such circumstances must be regarded as an abandonment of all back taxes.

By these remarks' \ve do not w-isli to be understood as expressing any opinion as to whether the back taxes for which the judgment was rendered, would, under the circumstances shown, have been recoverable had no sale been made.

For the reason stated the judgment will be reversed, and the application for judgment dismissed.

Judgment reversed.


author: Mr. Justice Sheldon

text:
    John Swalley et al. v. The People of the State of Illinois.

      Filed at Springfield January 22, 1886.

    1. Criminal law — limitations—excluding time of pendency of prior indictment.. The words “set aside,” in section 318 of the Criminal Code, providing that where an indictment is quashed, or the proceedings on the same set aside or reversed on writ of error, the time during the pendency of such indictment so quashed, etc., shall not be reckoned within the time limited by this act, so as to bar any new indictment, etc., are broad enough to include an indictment terminated by the entry of a nolle prosequi.

    2. So where a nolle prosequi has been entered as to an indictment, the time from the finding of such indictment to its dismissal will not be counted within the time limited for the prosecution of the offence.
    3. Same—parol evidence—to show identity of offence charged in the two indictments. Where an indictment against a party for burglary has been nol pressed, and a new one found, it is competent to show by parol evidence that the crime charged in both indictments is one and the same, and thus defeat the operation of the Statute of Limitations. 0
    Writ of Error to the Circuit Court of Sangamon county; the Hon. William L. Gross, Judge, presiding.
    Messrs. Murray & Mitchell, and Mr. G. W. Murray, for the plaintiffs in error:
    In order to maintain a prosecution for the crime of burglary, the accused must be indicted within three years from the time of the commission of the crime, (Crim. Code, sec. 315,) unless a former indictment for the. same «offence had been previously pending and had been quashed, etc. Sec. 318.
    The question whether two indictments charge the same offence must be determined -by an inspection and comparison of the two indictments, without the aid of extrinsic evidence. Durham v. People, 4 Scam. 172.
    The offences charged in two indictments are not the same W'hen the two are so diverse as to preclude the same evidence from sustaining both; and the test is, whether if what is set out in the second indictment had been proved under the first, there could have been a conviction. Hite v. State, 9 Yerg. 357; People v. Warren, 1 Parker’s C. C. 338; People v. Allen, id. 445; Durham v. People, 4 Scam. 172; 1 Bishop on Crim. Law, 1051, 1052.
    The entry of a nolle prosequi is analogous to the entry of a voluntary nonsuit in a civil action, and does not affect the question. Holmes v. Railroad Co. 94 Ill. 439.
    Mr. Geo. Hunt, Attorney General, and Mr. James B. Jones, State’s Attorney, for the People:
    The entry of a nolle prosequi in the first indictment was “setting aside” the proceedings in that case, in pursuance of section 318 of the Criminal Code, and the time such indictment was pending should be deducted from the time of the commission of the offence and the finding of the second indictment. Wharton on Crim. Pl. & Pr. (8th ed.) sec. 325; Foster v. State, 38 Ala. 435; State v. Hailey, 6 N. C. 42.
   Mr. Justice Sheldon

delivered the opinion of the Court:

In this case John Swalley and Daniel Overstreet were convicted of the crime of burglary. The only question which is presented is upon the statute of limitation of three years. The crime was committed in the month of August, 1881. The indictment was found at the February term of court, 1885, and charged that John Swalley and Daniel Overstreet, on the second day of February, 1885, at the county of Sangamon, in this State, a certain building, the same being a certain office of John Morris, Patrick Harris and Hannah E. Hutton, partners, as Morris, Harris & Co., did burglariously break and enter, etc.

To avoid the bar of the Statute of Limitations, the People introduced in evidence an indictment found at the May term, 1884, of the court, which charged that John Swalley, Daniel Overstreet, James Arnold and Richard Mines, on the first day of May, 1884, at the county of Sangamon, in this State, a certain building, - the same being a certain mill of John Morris, Patrick Harris and Hannah F. Hutton, partners, as Morris, Harris & Co., did burglariously break and enter, etc. At the October term of the court, 1884, the State’s attorney entered a nolle prosequi to that indictment, and the court ordered that the defendants therein be discharged, which was done on December 29, 1884, and the People made proof, by the testimony of witnesses, that the offences charged in the two indictments were one and the same offence. This proof was made against the objection of the defendants that the question of the identity of the offence charged in the two indictments could only be determined by an inspection and comparison of the indictments, without the aid of extraneous circumstances. Durham v. The People, 4 Scam. 172, is referred to by defendants’ counsel as sustaining the objection. This is evidently a misapprehension of that decision. That was a case of demurrer to a plea of a former acquittal, and it was said the question whether the indictments were for the same offence must be determined by an inspection of the indictments, as nothing but the facts appearing from the record were pleaded. That does not conflict with the rule that the identity of the offence may be -shown by parol evidence. 3 Greenleaf on Evidence, sec. 36; Wharton on Crim. Pl. & Pr. sec. 481.

Section 318 (Rev. Stat. 1874, ch. 38,) of the Criminal Code is as follows: “Where an indictment, information or suit is quashed, or the proceedings on the same are set aside or reversed on writ of error, the time during the pending of such indictment, information. or suit so quashed, set aside or reversed shall not be reckoned within the time limited by this act, so as to bar any new indictment, information or suit for the same offence.” If the time of the pendency of the first indictment be excluded, the three years’ limitation had not run, and the bar of the statute had not accrued at the time of the finding of the second indictment. Whether the time during which the first indictment was pending is not to he reckoned, depends upon whether the proceedings on the first indictment were “set aside, ” within the meaning of the section above cited. The section names three modes of. disposition of the indictment: quashing it, reversal of the proceedings thereon on error, and setting aside the'proceedings on it. The first two are specific’ modes, the last is general. To “set aside” is very broad in scope,—“to defeat the effect or operation of;” and we think it may well be held to embrace .here every other mode of defeat of the proceedings on an indictment, than quashing it and reversal on error, and so, that the manner of disposal of the first indictment amounted to a setting aside of the proceedings under it, and came within the saving-clause of the section.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    George W. Robinson et al. v. Martha A. Robinson et al.

      Filed at Mt. Vernon January 25, 1886.

    1. Conveyance—acknowledgment—whether essential. A convej'ance of land after delivery is valid and binding on the grantors without any acknowledgment. The purpose of a certificate of acknowledgment is to prove the execution of the deed, and when its execution is otherwise proved, it is as binding as if properly acknowledged.
    2. Same—delivery of deed. In order to .pass title to land a deed must be executed and delivered to the grantee, a valid delivery being indispensable. If a grantee obtains possession of the deed by fraud, without the knowledge or consent of the grantor, no title will pass.
    3. Same—compelling new deed by grantor after his destruction of prior one. Where the grantor obtains possession of his deed for land after its delivery to the grantee, and destroys the same without its having been recorded, a court of equity will compel the execution of another conveyance.
    4. Pasties—in chancery—on bill to compel the making of a new deed, where the grantor had destroyed one already made. A father sold and conveyed a tract of land to his son, who paid the purchase money, took possession, and made valuable improvements thereon, and continued to occupy the same until his death. Before his death the father obtained the deed, which had not been recorded, and destroyed it. He then conveyed the land to one Gr., for $1200, payable in one, two and three years, and took his three notes, secured by mortgage on the land, and G. conveyed to H. The widow and heir of the son filed their bill for a conveyance, making the father and G. and H. parties defendant. On hearing it was shown that the father had, before suit brought, transferred the first note to A as collateral security, and the second one to B: Held, that while A and B were proper parties if their interest had been known, they were not necessary parties, but that their interest could not be affected by the decree.
    Writ of Error to the Circuit Court of White county; the Hon. Thomas S. Casey, Judge, presiding.
    This was a bill in equity, brought by Martha A. Robinson and-Nora 0. Robinson/ widow and daughter of John E. Robinson, deceased, in the circuit court of White county, against George W. Robinson and others, to set aside certain deeds, and to compel a conveyance of the north-east quarter of the south-west quarter of section 3, town 5- south, range 8 east, in White county.
    It is alleged in the bill-that on the 29th day of May, 1879, George W. Robinson was seized of the land, and on that day he and his wife conveyed the premises to John E. Robinson; that the grantee paid $600 in cash for the premises, and improved the same; that the deed was not of record, and that George W. Robinson had burned and destroyed it. It is also alleged that John E. Robinson died intestate, leaving complainant as his widow and only heir; that upon the death of John E,,. George W. Robinson took possession of the land and conveyed it to Winston Gentry, and Winston Gentry conveyed to William A. Hargrave. The defendants all put in answers to the bill. George AY. Robinson admitted that he was originally seized of the land, but he set up in his answer that his son, John E. Robinson, was insane; that the said John E., in his insane ravings, had often desired respondent to make him a deed to the land; that on May 29, 1879, in order to quiet John E. Robinson, and for no other reason, respondent sent for a notary public, and a deed was signed by him and his wife, and the acknowledgment written out, but the seal of the notary was not attached; that the deed was not delivered to the grantee, but respondent delivered it to his daughter, Sarah A. Robinson; that unknown to respondent or Sarah A. Robinson, the said John E. Robinson obtained possession of the deed; that subsequently John E. Robinson returned the deed to respondent, and respondent destroyed it; that after the death of the grantee, respondent took possession of the land.
    On the hearing upon the pleadings and evidence, the court rendered a decree in favor of the complainants, as prayed for in the bill, which the defendants claim is erroneous for the following reasons: First, the deed was never really executed, no seal of the notary being attached; second, the evidence shows that there was no delivery; and third, in order to make . a deed operative it must be the intention of the grantor that the delivery should take effect presently.
    Messrs. Crebs & Berry, for the plaintiffs in error:
    To render a deed operative, in addition to signing, sealing and acknowledging, delivery and acceptance are essential. Wiggins v. Lusk, 12 Ill. 135; Byars v. Spencer, 101 id. 429; Herbert v. Herbert, Breese, 282; Ferguson v. Miles, 3 Gilm. 363; Skinner v. Baker, 79 Ill. 499.
    Delivery is a question of intent. Jordan v. Davis, 108 Ill. 336.
    A deed of gift, not delivered, destroyed, is of no effect, though there be proof of the declarations of the father, the donor, during the existence of the deed recognizing the property in the donee, Reid v. Butt, 25 Ga. 28.
    Upon the question of delivery we regard the case of Gorman v. Gorman et al. 98 Ill. 361, as presenting points very similar to those in the case now before the court.
    To make the deed operative it must have been clearly the intention of the grantor that the delivery should take effect presently. Jordan v. Davis, supra.

    Further, we insist that this decree should be reversed for the reason that it is shown on the part of defendants in error, in making their case, that there are parties interested in this suit not made defendants, and whose interests will be seriously affected should the decree be affirmed. George W. Robinson, in his testimony in behalf of defendants in error, testifies that he sold the land to Gentry, and took in payment three notes, secured by a mortgage on the land, and that one note was assigned by him to Mrs. A. E. Hinde, and another to Henderson Miller, who at the time rightfully held the notes, and neither of .whom is a party to this suit. Pratt v. Pratt, 96 Ill. 184; Hopkins v. Roseclare Lead Co. 72 id. 373.
    Mr. P. A. Pearce, and Mr.-N. Holdebby, for the defendants in error,
    reviewed the evidence quite fully as bearing on the question of delivery, citing Rawson v. Fox, 65 Ill. 200.
    No formal delivery was necessary to constitute a delivery. Bryan v. Wash, 2 Gilm. 557; Gunnell v. Cockerill, 79 Ill. 79; Walker v. Walker, 44 id. 311.
    The want of a notarial seal to the certificate of acknowledgment to the deed in no way vitiates it. Leaver v. Spink, 65 Ill. 441.
    At the time of the filing of the bill it was impossible to tell who held the notes secured by the mortgage, the presumption being that the mortgagee did.
   Mr. Justice Craig

delivered the opinion of the Court:

It is not essential to the validity of a deed that the notary’s seal should be attached. A deed may be valid and binding on the parties who execute it, without any acknowledgment before an.officer. The purpose of the certificate of acknowledgment is to prove the execution of the deed, and where there is no certificate of acknowledgment, other proof may be resorted to to prove the execution of the instrument, and when thus proven, the deed is as operative and binding on the parties as it would be if properly acknowledged before an •officer. There is ample evidence in the record to prove that the grantors executed the deed, and the fact that the notary failed to affix his official seal to the certificate of acknowledgment, did not affect the validity of the instrument.

But it is urged that the deed was never delivered, and upon this ground the title to the land did not pass to John E. Robinson, the person named therein as grantee. There is no conflict in the evidence as to the fact that the deed was in. the actual possession of the grantee, and remained in his possession until a short time before his death. The defendant Robinson himself testifies that he procured the deed from John E. Robinson, and destroyed it. At what time or under what circumstances the deed ivent into the possession of the deceased is not clear from the evidence. But the fact that he had the deed, and was in the full possession of the land, improving and cultivating it as owner, is beyond question.

If the ease was to be determined entirely upon the evidence of the defendant Robinson, and his daughter, Sally Hargrave, ■who, he claimed, had the custody of the deed, there might be some doubt in regard "to the delivery of the instrument; but the decision of the case does not hinge upon the evidence of these two witnesses. There is much evidence in the record tending to prove that John E. Robinson purchased and paid for the land, and that the deed was properly in his possession, as grantee, at the time his father obtained the possession of and destroyed it. Bracket testified to a conversation with George W. Robinson a short time before the deed was executed, in which Robinson told him that the land was paid for and belonged to John; that he had neglected to make a deed. Under the advice of the witness, Robinson then sent one of his sons to Enfield, after Wilson, the -notary, to take the acknowledgment. Wilson testified that he took the acknowledgment of the deed, and Gowdy states that he saw the deed in the possession of John E. Robinson on the 10th day of April, 1SS2, and read it. Watson testified to a conversation with George W. Robinson, in which he said that John had paid $400 to redeem this land and another forty-acre tract from a mortgage, and the tract in question was to be deeded to John’. Crabtree testified that Robinson told him in September, 1879, that his son,-John, had $400 to pay on a piece of land.

There is other evidence that John E. -Robinson, about the time the deed was executed, had $400 or $420 in his possession to pay on land. Indeed, there is much evidence in the record that John E. Robinson purchased the land from his father. In the fall of 1879, after the deed was executed, John E. Robinson was married, and moved on the land, built a house at ’ a cost of $250, and made other improvements, lie occupied the land for two or three.years, until he died. These facts all indicate that he had purchased the land. It is true that George W. Robinson testified that he never delivered the deed, and did not intend to deliver -it; but this evidence is overcome by the other evidence, in the case, which we think is sufficient to establish the fact that the transaction was a purchase, and the deed delivered to John E. Robinson as a purchaser of the land. If the deed had never been delivered, the title to the land would not pass under the deed. Or if the grantee bad obtained the possession of it by fraud, without the knowledge or consent of the grantor, the title to the land would not pass. In order to pass the title to land, a deed must be executed and delivered to the grantee. A valid delivery is indispensable. But we regard the evidence in the record sufficient to establish a valid delivery.

It appears that after the deed was destroyed, George W. Eobinson conveyed the land to Gentry for $1200, payable in one, two and three years, and took his two notes, and a mortgage to secure the notes, and Gentry conveyed to Hargrave. It also appeared from the evidence on the trial of the cause, that Eobinson had transferred the note first due, to Mrs. Hinde, as collateral security, and the second note to one Miller, and retained the third note. Gentry and Hargrave were made parties to the bill, but when the bill was filed the complainant had no knowledge that Eobinson had disposed of either of the notes, and consequently Mrs. Hinde and Miller were not made parties to the bill.

It is contended that the decree is erroneous because these two holders of the notes were not made parties. Had the complainant known that Mrs. Hinde and Miller held the notes in question, they would have been proper parties, but they were not necessary parties. If they have any interest in the premises, that interest will not be affected by the decree.

The decree of the circuit court will be affirmed.

Decree affirmed.

This record was assigned to Justice Dickey to prepare an opinion, but he failed to prepare the -opinion, and the record was re-assigned at the November term, 1885.


author: Mr. Justice Scott

text:
    The Citizens’ National Bank of Indianapolis v. Mary E. Dayton, Admx.

      Filed at Springfield January 22, 1886.

    1. Mortgage—bill to foreclose by an administrator, and to reform the mortgage for mistake. On bill by the administrator of a deceased mortgagee to foreclose the mortgage, the court may not only enter a decree of foreclosure, but also, the bill being properly framed for that purpose, for the correction of a mistake in the mortgage as to the description of the mortgaged premises.
    2. Where a court of equity has acquired jurisdiction to foreclose a mortgage on behalf of the administrator of the deceased mortgagee, it will have jurisdiction to afford all incidental relief germane to the principal object of the bill. In such case a reformation of the mortgage to correct a mistake therein is merely incident to the principal relief asked.
    3. Same—release of mortgage—what will so operate—giving a new note. Where a mortgagee agreed to release a mortgage upon condition that the mortgagor should insure his life to secure the debt, which was never done, and a power of attorney was written upon the mortgage authorizing the recorder to enter satisfaction of the same, which was never delivered, but retained by the mortgagee, and a new note was taken and the old one marked cancelled, but not surrendered: Held, that this was not sufficient to show a release of the mortgage.
    4. The talcing of a new note will not operate to discharge the mortgage security for the debt. A mere change in the form of the evidence of the debt will not in any manner affect the lien created by a mortgage.
    5. Parties—on bill to foreclose mortgage—generally—and in ease of the death of the mortgagee. On bill to foreclose a mortgage, all persons having an interest, either legal or equitable, in the mortgaged premises, must be made parties; but the heirs of a deceased mortgagee, before a foreclosure or entry for condition broken, have no interest in the premises, and are not necessary, or even proper, parties to a bill by the administrator to foreclose the mortgage.
    6. Where the mortgagee is dead, his personal representative is the proper party to bring a bill to foreclose the mortgage, for the reason the money secured belongs to the personal assets, and draws after it the mortgaged estate as an incident.
    7. Notice—of mistake in description in a mortgage—under the Recording law. A mortgagor owned part of lot 25, but no part of lot 26. A mortgage given by him described the premises as part of lot 25, but in giving the metes and bounds, the place of beginning, by mistake, was stated as at the south-a'esi corner instead of the south-easi corner of lot 25. Commencing at the south-iaesi corner of lot 25, the description given would bound a piece of ground in lot 26, while commencing at the south- east corner would describe the ground owned by the mortgagor: Held, that the record of the mortgage and the facts stated were sufficient to put a subsequent purchaser from the mortgagor, or a judgment creditor, upon inquiry, which would have led to a knowledge of the fact of the mistake, and was therefore notice.
    8. Same—what amounts to notice—putting one on inquiry. Where there is enough to put a prudent man upon inquiry in respect to the title to land, he will be chargeable with all the facts he might have learned by the exercise of reasonable diligence in making inquiry as to matters to which his attention had been directed.
    Wbit op Ebbob to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. James A. Connolly, and Messrs. Dunn & Connolly, for the plaintiff in error:
    An administrator must take the estate as he -finds it. He can not reform deeds or remove clouds from the title to real estate. Smith v. McConnell, 17 Ill. 135; Gridley v. Watson, 53 id. 186; Shoemate v. Lockridge, id. 503; Phelps v. Funkhouser, 39 id. 401; Beebe v. Saulter, 87 id. 521; LeMoyne v. Quimby, 70 id. 400; Cutter v. Thompson, 51 id. 390.
    In a proceeding to foreclose a mortgage, all persons having any interest, either legal or equitable, in the mortgaged premises, must be made parties. The mortgagee is the legal owner of the same, and in case of his death his heirs succeed to the legal estate. Oldham v. Pfleger, 84 Ill. 102; Carroll v. Ballance, 26 id. 17; Story’s Eq. Pl. sec. 200.
    It is true the heirs only hold the title in trust, but they can not be divested of this legal title without being represented in court. They hold the legal title for the benefit of the beneficial holder of the note, the cestui que trust. They occupy precisely the position of the trustee in a trust deed, which is merely an incident to the debt, as well as a mortgage. Both the trustee and cestui que trust are necessary parties to a suit for the foreclosure of a trust deed. McGraw v. Bayard, 96 Ill. 146; Scanlan v. Cobb, 85 id. 296; Gaytes v. Savings Bank, id. 256.
    While it is true that where a mortgage and note are given to secure the payment of a sum of money, the renewal of the note does not operate as a discharge of the mortgage, yet the intention of the parties always controls. The lien may be discharged by a release of the mortgage as well as by the payment of the debt. Rogers v. Trustees of Schools, 46 Ill. 428; Flower v. Elwood, 66 id. 438.
    A purchaser and a judgment creditor having a lien, stand upon the same equity. Martin v. Dryden, 1 Gilm. 216; Massey v. Westcott, 40 Ill. 160; Milmine v. Burnham, 76 id. 362.
    It is true the mortgage states that the property is a part of lot 25, which is superfluous, and being rejected, leaves a correct description by metes and bounds, which must control. Jackson v. Loomis, 18 Johns. 81; Everett v. Boardman, 58 Ill. 429 ; Emmert v. Hays, 89 id. 17.
    Where there are two descriptions in a deed, the one, as it were, superadded to the other, and one description being complete and sufficient of itself, and the other, which is subordinate and superadded, is incorrect, the incorrect description, or feature, or circumstance of the description, is rejected as surplusage, and the complete and correct description is allowed to stand alone. Kruse v. Wilson, 79 Ill. 233; Myers v. Ladd, 26 id. 415; Railroad Co. v. Morgan, 69 id. 492; Job v. Tebbetts, 4 Gilm. 153; Rodgers v. Kavanaugh, 24 Ill. 587.
    In the description of lands, in conveyances and judicial proceedings, it is held that if it can be made certain by rejecting that which is repugnant or false, it will be done so as to effectuate the intention of the grantor. Swift v. Lee, 65 Ill. 336; Sharp v. Thompson, 100 id. 447; Everett v. Boardman, 58 id. 429; Miller v. Buler, 25 id. 163; Sickmon v. Wood, 69 id. 330; Kruse v. Scripps, 11 id. 103.

      Messrs. Brown & Kirby, for the defendant in error:
    The defendant in error, as administratrix, was entitled to the relief sought, including the correction of the mistake.
    The arrangement made between Mary D. Dayton and Joseph Dayton, for a release of the mortgage, was never consummated, and consequently the mortgage was not released.
    The mortgage, though containing a defective description, wras sufficient to charge the bank with notice of all the rights and equities of Mrs. Dayton:
    A party having notice of such facts as would put a prudent person on inquiry, is chargeable with a. knowledge of other facts which, by diligent inquiry, he would have learned. Burt v. Coleman, 89 Ill. 364; 4 Kent’s Com. 179; Doyle v. Leas, 4 Scam. 204; Rupert v. Mark, 15 Ill. 542; Morrison v. Kelly, 22 id. 610; Merric v. Wallace, 19 id. 486; Babcock v. Lisk, 57 id. 327; Ogden v. Haven, 24 id. 59; Railroad Co. v. Kennedy, 70 id. 350; Harper v. Ely, 56 id. 179; Watt v. Schofield, 76 id. 261; Russel v. Ranson, 76 id. 168; Erickson v. Rafferty, 79 id. 210; Bent v. Coleman, 89 id. 364; Brown v. Galloway, 98 id. 41.
    In equity, whatever information is sufficient to put a purchaser upon inquiry, is sufficient notice of prior claims upon property transferred to him. Magruder v. Peter, 11 Gill & J. 217; Ringgold v. Bryan, 3 Md. Ch. 488.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case is the ordinary bill to foreclose a mortgage made by Joseph Dayton to Mary D. Dayton, since deceased, and in which other relief is asked. It was originally brought by Oliver E. Dayton, administrator of the mortgagee, against the mortgagor, and other persons, it is alleged, claim some interest in the mortgaged premises, but subsequent to the date of the making and recording of the mortgage. Since the death of the original complainant, Oliver E. Dayton, the suit has been prosecuted in the name of Mary E. Dayton, administratrix cle bonis non of Mary D. Dayton, deceased. On the final hearing, the circuit court reformed the mortgage so as to show it embraced the premises intended by the parties to be included in it, and rendered the usual decree of foreclosure. That decree ivas afterwards affirmed in the Appellate Court for the Third District, and the case is brought to this court on error.

The only defendant to the original bill which attempted to make any defence in the court below, or that assigns error on the record in this court, is the Citizens’ National Bank of Indianapolis, a foreign corporation located and doing business in the State of Indiana. It is admitted the bank obtained a judgment in the United States Circuit Court for the Southern District of Illinois, on the 5th day of January, 1876, against Jos.eph Dayton, the mortgagor, on which execution issued April 24, 1876, and which was afterwards returned by the proper officer nulla bona. That judgment remains in force, and is still unsatisfied. Although the bank obtained its judgment long since the making and recording of the mortgage sought to be foreclosed, it claims a prior lien under its judgment and execution on the property in controversy, and whether it has such prior lien or not, is the principal question in the case.

Before coming to the principal question made, it may be Avell to first consider some objections that go only to the present decree.

First—It is said complainant, as administratrix, is not entitled to the relief prayed for as to the alleged mistake in the mortgage. It is not perceived what this objection has to rest upon. Correcting the mortgage so as to make it embrace the land intended to be included in it, is in no sense to compel the specific performance in favor of the administratrix of a contract made by the mortgagee for the conveyance of lands. The contract had been executed, except it had been erroneously done, and nothing remains except to make the conveyance speak the truth, as the parties intended it 'should. Reforming the mortgage as was done, was merely incident to the principal relief asked, and when the court had obtained jurisdiction to foreclose the mortgage on behalf of the administratrix, it had also j urisdietion to afford all incidental relief germane to the principal object of the bill. Of this there can be no doubt, and there is no error in the decree in that respect.

Second—It is made an objection to the present decree that the heirs of the deceased mortgagee are not made parties to this suit. Counsel state the rule correctly, that in a proceeding to foreclose a mortgage all persons having an interest, whether legal or equitable, in the mortgaged premises, must be made parties. The difficulty does not lie in ascertaining the rule on this subject, but in its application. "What interest, either legal or equitable, have the heirs of a mortgagee in the land itself before a foreclosure of the mortgage or an entry for condition broken ? It is thought they have none at all. Both the note and mortgage pass to the administrator as other choses in action, and such administrator may foreclose the mortgage as one mode of enforcing payment of the note. When the mortgagee is dead, the general rule now is, his personal representative is the proper party to bring the bill to foreclose, for the reason the money secured belongs to the personal assets, and draws after it the mortgaged estate as an incident. It may be many of the old cases hold, and so some of the text writers may have stated the doctrine to be, that if the mortgage be in fee, in case of the death of a mortgagee his heirs are proper parties, either as complainants or as defendants, gnd the reason for the rule as it then existed was, the heirs alone were competent to reconvey, or otherwise there would be no one to .release the trust property in case it was redeemed from the mortgage sale. But no necessity exists, in this State at least, for the adoption of any such rule. A statute of this State (Rev. Stat. 1874, chap. 9q, sec. 9,) provides a mortgage or trust deed may be released by an instrument in writing executed by the executor or administrator. Since both the note and mortgage have come to be regarded as mere personal assets, they pass to the legal representative of the mortgagee, and his heirs are not necessary or even proper parties to a bill to foreclose.

Coming now to consider that which is alleged to be a bar to any relief, it is insisted the evidence shows, that by an agreement between the mortgagee and the mortgagor the lien of the mortgage was released. The evidence affords no warrant for the position taken. There were negotiations for the release of the mortgage and the taking of other security, but no plan was consummated. The mortgagor was to insure his life to secure the debt owing to the mortgagee. That was a condition precedent to any release of the mortgage security. Either he could not or did not effect any insurance upon his life, and all negotiations looking to a release of the mortgage came to an end, and the papers were returned by the person having charge of them for that purpose, to the mortgagee or her agent. It is true a power of attorney was written on the back of the mortgage, with a view to authorize the recorder to enter satisfaction of the mortgage, but it was never done. The power of attorney was never even delivered to him. It was always retained by the maker or her agents. The fact it was written on the back of the mortgage gave it no more effect than if it had been written on a separate piece of paper, and had been retained by the maker. There is and can be no pretence the mortgage was ever entered satisfied of record, so as to mislead the bank or any one else. It is also true a new note was taken, and the old one marked cancelled, but it was never surrendered to the mortgagor. The taking of a new note would not operate as a discharge of the mortgage security. A mere changing of the form of the evidence of the debt in nowise affects the lien created by the mortgage. The doctrine on this subject is definitely settled by the previous decisions of this court. Rogers v. Trustees of Schools, 46 Ill. 428; Flower v. Elwood, 66 id. 438.

In drafting the mortgage, the property intended to be included in it seems to have been misdescribed, in part at least, and in that respect the bill asked to have the mortgage reformed so as to conform to the true description. This, it is insisted, can not be done, for the reason, it is said, the bank occupies the position of an innocent purchaser for value, without notice of the alleged mistake in the mortgage. It was said by this court in Milmine v. Burnham, 76 Ill. 362: “It can not be justly claimed a judgment creditor has any equity superior to a bona fide purchaser. Whatever notice would affect the latter, must in like manner affect the former.” Applying this doctrine, the point made may be readily disposed of.

There was clearly enough in this case to affect a purchaser with notice of the mortgagee’s right. The lot the mortgagor owned was a part of lot 25, and it was so described in the mortgage. The mistake occurred by commencing to describe the part of lot 25 mortgaged, by metes and bounds, at the south-west corner, instead of the south-east corner of said lot. Commencing at the south-west corner of lot 25, the description given would bound a piece of ground in lot 26. The mortgagor owned no part of lot 26 at the time of the making of the mortgage, and never did, before or since. He did own a part of lot 25, which would be accurately described by the distances given in the mortgage, by commencing at the south-east corner instead of the south-west corner of the lot, to bound it. The mortgagor was in possession of a part of lot 25 in 1868, when the mortgage was made and recorded, and continued to be, by himself or tenants, until long after the bank obtained its judgment. The fact the mortgaged premises were described as a part of lot 25, and that the mortgagor owned a piece of ground in that lot, and that the record showed he owned none in lot 26, was amply sufficient to put a purchaser on inquiry as to the source of his vendor’s title, and had he once entered upon such inquiry it would have led him to a knowledge of the true condition of the title he was buying. Omitting to observe that ordinary precaution, he would be chargeable with a knowledge of all the facts he might have learned by the exercise of reasonable diligence in making inquiry as to matters to which his attention had been directed. Certainly a judgment creditor can not insist, on any greater protection in such matters than a bona fide purchaser for value. No doubt is entertained these facts were sufficient to charge the bank with notice of the mortgage, and with the mistake in the description of the land intended to be conveyed. Under the previous decisions of this court the decree is warranted by the-law and the evidence. Milmine v. Burnham, supra; Bent v. Coleman, 89 Ill. 364; Babcock v. Lisk, 57 id. 327.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed,.


author: Mr. Justice Tunnicliff

text:
    Helen M. Mix et al. v. The People of the State of Illinois.

      Filed at Ottawa January 25, 1886.

      1. State’s attorney—suits in relation to the revenue—duty of that officer. The law makes it the duty of the State’s attorney to prosecute all actions and suits for the collection of the public revenue; and if he is absent, or unable to attend, or is interested in any cause or proceeding affecting the public interests, it is the duty of the court to appoint some competent attorney to prosecute or defend such cause or proceeding.
    2. Taxation—of the assessment—over-valuation—fraudulent assessment—remedy. If property is fraudulently assessed at a greater value, in proportion, than other like property in the same district, the owner should have the assessment reviewed by the tribunal appointed by law for that purpose. If he neglects to avail of his legal remedies, he can not contest the assessment and validity of the taxes on a bill by the State to enforce its lien against lands for such taxes.
    3. Saxe,—presumption in favor of legality of assessment. Where two or more lots are assessed jointly, and not separately, it will be presumed in favor of the acts of the assessor, in the absence of a contrary showing, that they were so situated that their value could not be ascertained separately, as, if one building had covered part of both lots.
    4. Same—refusal to assess property in owner’s name—remedy, if injury results. The refusal of the proper officers to assess lands and lots in the names of the several owners thereof, affords no ground of defence against proceedings to collect the taxes against such property. If the owner is injured by such refusal, the law will give him an adequate remedy against the office)'.
    5. Same—hy whom assessments must be made—and of an illegal reassessment, and a compromise based thereon. The law has designated a certain person to assess and fix a value upon property for taxation, and provided a township board of review, and no other person than the assessor can make such assessment. The board of supervisors have no power or authority of law to appoint a committee to re-assess a party’s lands for the purposes of taxation, and compromise with the tax-payer in regard to the State and county taxes, and their action to that end, when set aside on certiorari, affords no defence to a proceeding to collect the taxes.
    6. Where the board of supervisors, though without authority, appointed a committee to re-assess a party’s lands, which was done by a reduction of the valuation, and by way of compromise with the board the owner paid the taxes on the basis of the new assessment, it was held, that while such reassessment and compromise were void, yet on bill to foreclose the lien for the taxes, the payment so made should be deducted from the taxes extended against the property.
    7. Foreclosure of tax lien—sufficiency of the hill—as to the taxes of different years embraced therein. A bill to foreclose the lien against land for the taxes, etc., of several years, after setting out the taxes of the years 1878 and 1879, and the forfeiture of the same for those taxes, etc., charged as follows: “ That the full amount now due upon said lands and lots, as shown upon said collector’s books of the year 1880, for taxes, penalties, interest and costs, including said forfeitures for the years 1878 and 1879, and accrued taxes for the year 1880, is the sum of $3687.40, and the amount which was and is a lien upon each tract and lot separately, is shown by said books and said copy attached, opposite to each tract and lot, separately and respectively^ ” and prayed “that the said tax lien” might be foreclosed: Held, that these allegations were clearly sufficient to entitle the complainant to a foreclosure, not only for the taxes and forfeitures incurred for the year 1879 and previous years, but also for the taxes shown by the collector’s books to be due for the year 18S0.

      8. Same—of defective description of lands—and correction thereof. In a proceeding under the statute to foreclose the lien upon land for taxes due and unpaid thereon, the description of the lands and lots must necessarily be the same as set forth in the assessment list and judgment, and a bill to correct it, when defective, will not probably lie.
    9. Same—defective description of a portion of the lands—validity £>f decree as to the residue. A decree of foreclosure for taxes against several tracts for the taxes, etc., due upon each, is and should be several as to each tract, and if the description as to one or more of them is void for uncertainty, that will not render the decree erroneous, and vitiate the sale as to the other tracts.
    10. Same—decree giving time for payment. The decree of foreclosure of a tax lien against several tracts or lots of land, after finding the sum due and unpaid upon each parcel, should fix a short time within which the amount so found due should be paid, so that the parties interested may pay upon all or any of the tracts, and, as to such, avoid a sale.
    11. Same— where some are not made parties—effect upon decree as to such as are parties. The fact that all persons having an interest in lands against which the lien of the State for taxes due thereon is sought to be foreclosed, are not made parties, will not prevent a decree as to the interest of one made a party. The only effect of not making them parties is that they will not be bound, or their interest in the property be affected thereby.
    12. Eobmeb adjudication—as to matters that might have been presented, but were not. Where a land owner appears and resists an application for judgment in the county court against his land for taxes, and his objections are overruled and judgment rendered against the lands for the taxes, such judgment, while unreversed, is conclusive upon the owner and his land, not only as to the matters actually decided by the county court, but also as to all questions and objections that might have been raised against its rendition, no matter how erroneous the judgment may be.
    13. Chanoeby—exceptions to the answer—in what manner to be taken. Exceptions to answers for immateriality, irrelevancy, and on account of scandalous matter contained in them, should set forth the parts of the answer excepted to. It is not proper to refer to the parts excepted to, by the page and line, as such paging can not well be preserved in making up the transcript of the record.
    14. Same—to what the exceptions may relate—when answer not under oath. Where the answer is not required to be under oath, exceptions can only be taken to such matters therein as are irrelevant, impertinent or scandalous.
    15. ' Same—answer when taken as true. Where exceptions to an answer are sustained, the answer is not to be taken as true on the hearing, if replication is filed. It is only when the exceptions are disallowed, and the complainant abides them, that the answer will be taken as true.

      16. Same—dismissal of suit for want of authority to bring it. Where a bill was filed in the name of the People of the State of Illinois, by an attorney at law occupying no official position, to foreclose a lien upon certain lands for taxes due thereon, and the defendants sought to 'question the authority of counsel to bring the suit, first by demurrer, and then by answer, and nearly two years after the filing of the bill, entered their motion to dismiss the suit for want of such authority, it was held, that the motion was properly overruled after such lapse of time.
    17. Same—reference to master to find taxes due—on bill to foreclose tax lien. On bill to foreclose the lien of the State for taxes due upon several tracts of land and' lots-, on which a certain amount of taxes have been paid, the court may properly refer the case to the master to ascertain and report the amount remaining unpaid on each tract,* including costs, and the approval of such report will be a sufficient finding by the court as to such amounts.
    18. Same—receiving incompetent evidence in chancery—as a ground of objection—presumption. In chancery, the admission of incompetent evidence on the hearing is not cause for reversal, provided there is sufficient competent evidence in the record to sustain the decree, it being presumed that the court, in such case,' acts only upon the evidence competent and relevant to the issue.
    Writ op Error to the Circuit Court of Kankakee county; the Hon. 0. T. Reeves, Judge, presiding.
    This is a bill in chancery to foreclose a lien against certain lands and town lots in Kankakee county, for taxes thereon, under section 253 of the Revenue act of 1872, which reads as follows:
    “Taxes upon real property, together with all penalties, interest and costs that may accrue thereon, shall be a prior first lien on such real property, superior to -all other liens and incumbrances, from and including the first day of May, in the year in which the taxes are levied, until the same are paid, which lien may be foreclosed in equity in any court of competent jurisdiction, in the name of the People of the State of Illinois, whenever taxes for two or more years upon the same description of property shall have been forfeited to the State, and may be sold under the order of the court by the person having authority to receive State and county taxes, with the same notice to interested parties, and right of redemption from sale, as is now provided by law, and in conformity with sections four (4) and five (5), of article 9, of .the constitution of this State. In proceedings to foreclose the tax lien on any real property, the amount due on the collector’s books against the property shall be prima facie evidence of the amount of taxes against the real property. When any taxes are collected in any such foreclosure proceedings, they shall be paid to the county collector, to be distributed by him to the respective authorities entitled thereto.”
    The bill was filed on the 11th day of March, 1882, in the name of the People of the State of Illinois, as complainants, and is signed by C. E. Starr as solicitor for complainants. James Mix, in whose name the lands and lots are assessed, and who is stated to be the owner or to claim some interest therein, was made defendant to the original bill, and summons was issued and served on him, returnable to the April term, 1882.' Duly certified copies of the collector’s books for the towns of Momence and Ganeer, in which the premises are situated, are attached to and made a part of the bill.
    It is stated in the bill that these “lands and lots were forfeited to the State of Illinois for the taxes of the year A. D. 1878, and for the year A. D. 1879; that the amount of taxes, penalties, interest and costs dues on said lands and lots for the year 1878, was the sum of $1468.90; and the amount of taxes, penalties, interest and costs on said lands and lots forfeited to the State for the year 1879 was the. sum of $1220.34, and the full amount now due upon said lands and lots, as shown upon the collector’s books for the year A. D. 1880, for the taxes, penalties, interest and costs, including said forfeitures for the years 1878 and 1879, and accrued taxes for the year A. D. 1880, is the sum of $3687.40, and the amount which was and is a lien upon each tract and lot separately, is shown by said books, and said copy attached, opposite to each tract and lot separately.” The oath to the answer is waived. A foreclosure is asked for the amount shown to be due against the property.
    No steps were taken at the April term, although Mix was served with process more than ten days before the commencement of the term. At the September term, A. D. 1882, Mix filed a demurrer to the bill, which was sustained, and leave given to complainants to amend their bill, which they did on the same day, setting forth that the title to the property was then in one Helen Mix, subject to the lien, and that George Y. Huling had or claimed to have some interest in the lands, and asks that they may be made parties, and compelled to answer, but waives their oath to the same. On the 14th of November, 1882, all three of the defendants, the two Mixes and Huling, filed their answers, to which exceptions were sustained, and on the 3d of March, 1883, they filed another answer, which, besides denying the material allegations of the bill, denies the right to maintain the bill for want of jurisdiction; avers the county had not authorized the suit to be brought, and refused to authorize complainants’ counsel to bring it; says the assessor and county clerk willfully and corruptly assessed the property in the name of James Mix, when they knew certain of it belonged to Manning Leonard and certain of it to H. Church Todd, trustee for Helen M. Mix, and that the forfeitures are void by reason thereof; that the land was fraudulently assessed too high; that some of the tax was levied to pay bonds issued without authority of law; that the county court had no jurisdiction over the persons of the owners of the property, or the subject matter of the application for judgment for the taxes of 1878 and 1879; that all of the several taxes for those years are void; that the tax collectors of said towns did not make out proper lists of the real estate, nor make affidavit of their correctness; that the intended application for judgment was not published for three weeks prior to the term of the county court to which application was made for judgment; that Manning Leonard and H. G. Todd are owners of the premises, and are necessary parties;' that the assessor assessed this property higher than other property in the same neighborhood of like value, and that Manning Leonard and H. C. Todd had no notice of such assessments; that Leonard and Mrs. Mix applied to the board of supervisors of the county for relief from these assessments, and they appointed a committee to re-assess the property, and agreed with the owners that upon their paying the taxes in accordance with the value as thus re-assessed, to accept the same in full, and that they accepted this proposition and paid the taxes upon the valuation as thus fixed, ■which was greatly below the valuation placed on the property by the regular assessors; that neither the board of supervisors nor the State of Illinois, nor the towns of Momence or Ganeer, nor any other municipality authorized to collect the taxes sought to be enforced, have authorized the commencement of this suit; that much of the property is assessed at more than it is worth, and avers that the tax records show these land were not forfeited to the State for those years, but on the contrary show they were all paid and discharged.
    Exceptions were sustained to a portion of the amended answer, and on the 10th of April, 1883, a replication was filed and the cause referred to the master, who reported that defendants had taken no proof, “though a good opportunity had been offered them.” On the 14th of January, 1884, defendants moved to dismiss the suit for want of authority on the part of O. E. Starr to bring the same, which motion was overruled. The cause was. heard on the 16th of January, 1884, and a final decree rendered as of April 17th thereafter, foreclosing the lien, and Helen Mix and James Mix bring the case to this court on writ of error.
    Mr. Stephen E. Moore, and Mr. William Potter, for the plaintiffs in error.
    Mr. C. R. Starr for the defendants in error.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

Various exceptions were taken to the answers in this case, for immateriality, irrelevancy, and on account of scandalous matter contained in them; but the exceptions do not, as they should do, set forth the parts of the answers excepted to. It is referred to only as set forth on certain specified pages and lines of the answers, and as their paging has not been, by the circuit clerk, preserved in the record, we are unable to say, therefore, whether the exceptions were properly sustained or not.

The plaintiffs in error sought, first by demurrer, and after-wards by their answers, to question the authority of complainants’ counsel to bring this suit. Failing to accomplish their purpose, and after the suit had been pending for nearly two years, they then make their motion to dismiss for the want of such authority. The court very properly overruled this motion. It was of a dilatory character, and should have been made at the first opportunity, and it could not be properly raised by demurrer or answer. Counsel for plaintiffs in error have presented no authorities upon the subject, or. referred us to any statute bearing upon it, and we know of > none, except that by part second of section 5, chapter 14, of the Eevised Statutes, it is made the duty of the State’s attorney to prosecute “all forfeited bonds and recognizances, and all actions and proceedings for the recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the State, or his county, or to any school or road district in his county; ” and by section 5 it is made the duty of the court, whenever he is absent or unable to attend, or is interested in any cause or proceeding, civil or criminal, to appoint some competent attorney to prosecute or defend such cause or proceeding. It is said, and so appears from the record, that the State’s attorney had been employed by some of the parties interested, before this litigation arose, regarding one of the questions involved in this case, and had this motion been made in apt time, the court would have doubtless appointed complainants’ solicitor, or some other competent attorney, to prosecute this suit. The collection of the public revenues is of the utmost importance, and no court should allow a suit of this character to be dismissed because the solicitor who brings it may not happen to be the State’s attorney or the Attorney General, without good cause shown therefor. There is no statute requiring a bill of this kind to be signed in the official character of either of those officers, as there is with reference to an indictment.

Complaint is made that these lands and lots were fraudulently assessed at a far greater value in proportion than other lands and lots in the same assessment district. Even if this is so, this objection can not be raised in this proceeding. The law has designated a certain person to assess and fix a value upon property for purposes of taxation, and given a remedy to parties aggrieved by his action, to have the same reviewed. If parties neglect this opportunity, they at least can not contest the matter in a suit like this, brought to enforce the lien given- by the statute against the lands for the non-payment of the taxes. The action of the board of supervisors in appointing a committee to re-assess these lands for the purposes of taxation, and their compromise with plaintiffs in error regarding the State and county taxes, was clearly unauthorized; but whether so or not, their proceeding in regard thereto has been reversed and set aside by a court of competent jurisdiction on writ of certiorari, which is binding upon every one so long as it remains in full force, and plaintiffs in error can not therefore invoke the action of the supervisors as a defence here; but so far as they have paid to the proper collecting officers any taxes, penalties or costs, under said arrangement with the supervisors, they are entitled to a credit therefor in this proceeding.

Counsel for plaintiffs in error are wrong in supposing that when exceptions to an answer are sustained, therefore the answer is taken as true. The case of Prettyman v. Barnard, 37 Ill. 105, does not announce such a rule, but holds only that-where the exceptions are disallowed, and counsel elects to abide by them, and files no replication, then the answer will be taken as true. In this case an answer under oath was waived, and exceptions could therefore be taken only to such matters therein as should be regarded as irrelevant, impertinent or scandalous, and it would be a very strange doctrine to hold that because, exceptions were taken and sustained to such matter, therefore the rest of the answer must be taken as true, even though, as ivas done in this case, a replication was filed.

Nor was there any error in the court refusing, as is claimed, to pass upon the competency of evidence, as it was offered for its consideration. The court stated, at the time of the offer, that it would be admitted subject to the objection, and such weight given to it as the court might think it was entitled to. It is familiar law, in chancery practice, that the admission of incompetent evidence on the hearing is not cause for reversal, provided there is sufficient competent evidence in the record to sustain the decree, the reason béing that the court is supposed to have disregarded all evidence in the case except that which is competent and relevant to the issue.

It is also claimed that among the various taxes extended against these lands, is one for the payment of certain bonds which it is alleged are void, and were fraudulently issued. This objection can not prevail. The appellants appeared in the county court and resisted the application for judgment, and should have made their objection to that court. Having personally appeared, and there raised all objections they saw proper to the obtaining of the judgment, and failing to appeal or prosecute a writ of error therefrom, it becomes conclusive upon them as to all questions or objections that were or could have been raised against its rendition.

The cases cited by counsel for plaintiffs in error to show that a judgment rendered against land for various taxes, a portion of which is illegal, is for that reason void, does not apply to a case where the party raising the objection was personally before the court rendering the judgment. The court then having jurisdiction over the person and the subject matter, its judgment, until reversed or set aside, is conclusive upon the parties, no matter what errors may have been committed by the court in the rendition of such judgment. Graceland Cemetery Co. v. The People, 92 Ill. 619.

The allegations in the bill, we think, are clearly sufficient to entitle defendants in error to a foreclosure, not only for the taxes and forfeitures incurred for the year 1879 and previous years, but also for the taxes shown by the collector’s books to be due for the year 1880. The law makes the collector’s books prima facie evidence of the taxes due against the land, and the allegation in the bill is, that “the full amount now due upon said lands and lots, as shown upon said collector’s books of the year A. D.-1880, for taxes, penalties, interest and costs, including said forfeitures for the years 1878 and 1879, and accrued taxes for the year A. D. 1880, is the sum of $3687.40, and the amount which was and is a lien upon each tract and lot separately, is shown by said books, and said copy attached, opposite to each tract and lot, separately and respectively, ” and the bill prays that the said tax lien may be foreclosed, etc. This objection was raised at the hearing, and out of abundant caution the counsel for complainants asked leave to amend the bill in that respect, to make the allegation correspond with the proof, but the court refused to allow the amendment to be made. As we think the allegation was already sufficient, there was no error in the refusal; but had it been otherwise, the court should have allowed the amendment to be made.

There is error, however, in this decree, for which it will have to be reversed. The decree was for the full amount of taxes, penalties and costs, without allowing plaintiffs in error anything for large sums of money they had paid on these taxes, to the proper officers, under the alleged compromise with the board of supervisors. It was the duty of the court to allow a credit on each tract of land for whatever had been paid thereon, and to have ascertained and found by the decree the amount due upon each tract, and the court, in our opinion, erred in requiring, as it seems by the decree to have done, as a condition to such allowance, that the party interested should pay the balance due. That part of the decree with reference to allowing these credits, is as follows: “If the said defendants or parties interested in said lands and lots shall pay the taxes, interest and penalties and costs for which the same are ordered to be sold, to said collector before said lands are sold, with "costs of suit, then the said, collector shall'allow as a credit all sums paid to said collector heretofore on account of said taxes, if any such have been paid to him. ” To ascertain and fix the amount due on each tract, the court can refer the ease to the master to determine, and report to the court the amount remaining unpaid on each tract, including costs, and the approval of such report by the court would be a sufficient finding by the court as to such amounts. The decree should also fix a short time within which the amount found due should be paid, so that parties interested may pay upon all or any of the tracts, and as to such, avoid the sale.

It is objected that some of the lots were assessed jointly, and not separately, as required by the statute. The presumption should be indulged in favor of the proceedings of the assessor, that the lots were so situated that their value could not be ascertained separately, as, if one building had covered part of both. But in this particular ease plaintiffs in error can not raise that objection here, as they appeared and defended against the judgment. The decree should follow the judgment in that respect, and for the purpose of sale or payment of the taxes, penalties, etc., property thus assessed should be treated as one lot.

It is said the court below erred in rendering judgment against James Mix for costs. We have examined the decree and are unable to find anything said about the costs of this suit. The costs mentioned in the decree are to be made by a sale of the land, unless parties interested shall see proper to pay it with the taxes, penalties, etc., and thus avoid a sale. This is in no sense a judgment against Mix or anybody else, but is against the land. There is no question before us as to the costs of this suit.

It is assigned for cross-error that the court erred in refusing to render a decree for the payment of the State and county taxes, and in dismissing the bill as to them, and all penalties and forfeitures connected therewith. We are of opinion that this assignment of error should be sustained. As we have before said, the proceedings before the board of supervisors in attempting to re-assess these lands and lots and compromise with plaintiffs in error concerning these taxes, was not'only unauthorized, but even if it was, the same has been set aside on certiorari, and for the purposes of this case are to be treated as if they had never taken place, except that such of the parties as have paid any taxes on these lands or lots under said agreement, are entitled to a credit therefor.

It is urged that the land was not assessed in the names of the true owners, and that the county clerk and assessor, though requested to assess the same, refused to do so. We do not see that that is any reason why the owner should not pay the taxes, or why judgment may not be rendered against the land therefor, or the lien created for the same should not be foreclosed. If plaintiffs in error have been injured by the willful and fraudulent misconduct of the clerk or assessor, the law will probably afford them an adequate remedy. Such conduct is not a defence to this proceeding. It is said others have an interest in these lands and lots who should be made parties to the suit. If there are any such persons, they, not being made parties, will not be bound by the decree in this case, nor will their interest in the property be affected thereby. But that ought not, so far as we can see, prevent the foreclosure as to the interest of the defendants.

It is also urged, that as to some of the lands or lots the description is so defective that the same can not be located. As to the tracts to which this objection is made, it is replied by counsel for defendants in error that no foreclosure was taken. As the record is voluminous, and the case reversed upon other grounds, we have not taken the pains to make the necessary comparison to ascertain whether this is correct or not. The decree being several as to each tract, if, as to some, the description is void for uncertainty, that would not vitiate the sale or render the decree erroneous as to the other tracts. In this peculiar statutory proceeding the description must necessarily be as set forth in the assessment list and judgment, and a bill to correct it, where it is defective or erroneous, could not, probably, be maintained. We have held, in a direct proceeding for - judgment against lands -for taxes, that there could be no lien, and consequently no judgment, unless they are described so that they can be located and found. (Sanford v. The People, 102 Ill. 374; People v. Chicago and Alton Railroad Co. 96 id. 369.) Whether a party who has personally appeared and objected to the rendition of the judgment, but not on these grounds, can be heard to say that no decree shall be rendered for a sale of the land because of this faulty description, we will not at this time decide. If the description is void for uncertainty, it can not harm the real owner by selling, and yet there might be parties willing, at the foreclosure sale, to purchase the property for the amount of the taxes, penalties and costs, and run the risk of the sufficiency of the description. In this way the revenue might be collected, and we ought not unnecessarily to throw obstacles in the way. While the courts may not be able, in this class of cases, to correct a bad description, it will be time enough to hold it bad when they are obliged to do so. Should counsel for complainants below desire, the court should give them leave to dismiss their bill as to any tracts of land or lots the description of which they are satisfied is void for uncertainty.

There are other minor objections raised by counsel for plaintiffs in error, but none of them are of such a character as would require a reversal of the decree below. Injustice may have been done the plaintiffs in error by too high an assessment of their property, and from the action of the board of supervisors it would seem that such was the ease; but we are powerless to remedy the wrong that may have been done them in this respect.

The decree of the court below is reversed, with directions to that court to ascertain and fix the amount due against each tract of land to be embraced in the decree of foreclosure, and to render such decree in conformity with this opinion.

Decree reversed.