Macoupin County IL Archives Court.....Chestnut, V Marsh 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 12:18 pm

Source: Records Of Cases Illinois
Written: 1850

John A. Chesnut, appellant, v. Ebenezer Marsh, appellee.

Appeal from Macoupin.

A judgment under which lands are sold for the payment of taxes, is good, if it 
contain the substance of the form required by the statute. 

A judgment rendered by a court having full jurisdiction, is obligatory until 
reversed, though such judgment may be irregular and erroneous. (a) 

In a collateral proceeding, a judgment for the sale of lands for the payment 
of taxes, cannot be impeached because the same judgment is against the owners 
of the land; latter part will be regarded as surplusage. (b)

This was an action of ejectment brought by Chesnut against Marsh in the 
Macoupin Circuit Court, at September term, 1848, to recover possession of the 
east, half of the southwest quarter of section 21, in town 10, range 7 west of 
the third principal meridian. 

The title of Chesnut was derived from a sale of the land for taxes. The only 
question decided by the court, was as to the sufficiency of the judgment 
ordering the sale of the lands; and this judgment is sufficiently set out in 
the opinion of the court.

The cause was heard before Woodson, Judge, and a jury, at October term, 1850.

On the hearing of the cause in the Circuit Court, the judge excluded the 
judgment for taxes, referred to in the opinion, ordering the sale of the lands 
in controversy, which was rendered in 1839, and the other proofs offered by 
the appellant. The exclusion of these proofs is assigned for error. Chesnut 
appealed.

R. S. Blackwell, for appellant:

The Circuit Courts of this state, in the exercise of the judicial power 
conferred upon them by the revenue law of 1839, are not to be regarded, quo ad 
hoc, as courts of special jurisdiction, within the meaning of the rule, 
requiring the records of such courts to show affirmatively that all of their 
proceedings are strictly in accordance with the statute giving the power. The 
Circuit Courts, before this additional jurisdiction was conferred upon them, 
were courts of record, possessing a general jurisdiction, having a public 
seal, established terms, organized process, a permanent location, judicial and 
executive officers, and their functions do not cease on the execution of a 
particular power. No change has been made in the organization or character of 
the courts by the revenue laws.

But they exercise a general jurisdiction, under a public statute, and are 
regarded in all respects as superior courts without limitation, as to the 
subject matter or mode in which they are to exercise their authority. When, 
therefore, their jurisdiction appears, the same liberal intendments are to be 
made in support of a judgment under the revenue law, as in the judgments  of 
the Circuit Courts, rendered in the due course of the common law: Doe, ex dem 
Obert v. Hammel, 3 Harrison N. J. R., 73; Kempe v. Kennedy, 2 U.S. Cond. Rep., 
223; Raymond v. Bell, 18 Conn., 87-9; Gregnoir v. Astor, 2 Howard U. S. R., 
319.

But if the Circuit Courts, in the exercise of this power, act as courts of 
special or limited jurisdiction, as laid down in Thatcher v. Powell, 6 Wheat., 
119, still those courts, following this rule, have repeatedly decided that, if 
the record shows jurisdiction in the court, then, however erroneous their 
proceedings may be, their judgments cannot be impeached in a collateral 
action, but are regarded as conclusive upon parties and privies, until 
reversed upon writ of error or appeal: Voorhees v. U. S. Bank, 10 Peters, 449; 
Thompson v. Tolmie, 2 Peters, 157; Weyer v. Zane, 1 Ohio Cond. Rep., 589; 
Adams v Jeffries, 12 Ohio, 272; Young v. Lorrain, 11 Ill., 636-9; Wyman v. 
Campbell, 6 Porter, 236-43; Doe v. Wise, 5 Blackf., 402; M'Ilvoy v. Speed, 4 
Bibb, 85; Fridge v. Slate, 3 Gil. and John., 103; Van Wormer v. Mayor of 
Albany, 15 Wend., 262; Paine v. Moreland, 15 Ohio, 444-5.

The court in this case had jurisdiction.

This court will presume that the collector did his duty in making his report: 
Taylor v. Peeple, 7 Ill., 349 (2 Gil.).

And the record recites the notice required by law. This recital is prima facie 
evidence that notice was given: Rust v. Frothingham, 1 Ill., 258 (Breese); 
Banber v. Winslow, 12 Wend., 102.

The judgment is not regular, and could have been reversed upon writ of error. 
But the substantial requirements of the statute are recited in the judgment, 
and appear to have been complied with, and the judgment cannot be impeached 
collaterally: Swiggert v. Harber, 5 Ill., 371; Rigg v. Cook, 9 Ill., 348-9; 
Atkins v. Hammin, 7 Ill., 450; Laws 1838-9, p. 14, sec. 30.

Billings & Parsons, for appllee:

1. It is a well settled principle, that in an action of ejectment to recover 
possession of land, purchased at a sheriff's sale for taxes, the plaintiff, 
before he can introduce the sheriff's deed in evidence, must first exhibit a 
valid judgment against the land: Atkins v. Hinman, 2 Gil., 437.

2. Judgments are the sentence of the law, pronounced by the court upon the 
matters contained in the record: 3 Blackstone's Com., 395.

A judgment, though pronounced by the judge, is not his determination, but the 
determination and sentence of the law. Tested by this rule, the judgment 
attempted to be rendered in this case, is void: Laws 1839, secs. 26, 29, and 
30.

Where a summary remedy is given by statute, a person seeking to avail himself 
of it, must be confined strictly to its provisions, and shall take nothing by 
intendment: Logwood v. Planters' Bank, 1 Minor, 25; Bates v. Planters' and 
Merchants' Bank, 8 Porter, 100; Roberts v. State Bank, 9 Porter, 317; 8 
Blackf., 37; 7 Hill, 25; 1 Greene, 306; 4 Halsted, 20.

3. As to what are voidable, and what void judgments: Buckmaster v. Carlin, 3 
Scam., 106: Ellicott et al., v. Piersol, 1 Peters, 340; Thompson v. Tolmie, 2 
ibid, 162: Swiggart v. Harber, 4 Scam., 371; Woodruff v. Taylor, 20 Vt., 76: 
Bradstreet v. Neptune Ins. Co., 3 Sumner, 607; Sanford v. Dick, 17 Conn., 216; 
Anderson v. Miller, 4 Black., 419; Miller v. Bartoloo, 3 Eng. (Ark), 321.

Caton, J. In this case we are only called upon to decide upon the effect of 
the judgment, under which the premises in question were sold, for the non-
payment of taxes. That the court had jurisdiction, there is no doubt. It is 
not disputed that the exigencies are shown to have existed, which called upon 
the court to act, to adjudicate, and to proceed to render a judgment. The rule 
of law is well settled, that when a judgment is rendered by a court thus 
possessing jurisdiction, although the judgment may be irregular and erroneous, 
it is obligatory until reversed: Young v. Lorraine, 11 Ill., 624. This 
principle is applicable to the case before us, for although the statute 
authorizes a judgment for taxes, in effect to be defeated by the proof of 
certain facts in a collateral action; as no attempt is made to prove any of 
those facts, that provision of the statute has no application, as we will 
hereafter attempt to show.

The only question then would seem to be, is this such a judgment as the court 
had authority to render? The statute prescribes a form for these judgments, 
which form is directed to be adopted as near as the nature of the case will 
permit. This form contains certain recitals, after which follows the judgment 
of the court, which is in favor of the state and against the several tracts of 
land contained in the previous recitals, for the taxes, interest and costs due 
severally thereon, concluding with an order, that they be sold to pay the 
same. The recitals in this order set forth in detail the matters, the 
substance of which is only required to be recited in the statutory form. After 
the recital, follows a judgment against the several owners of the different 
tracts in favor of the state of Illinois, for the amount of taxes, interest 
and costs due upon each tract; and it is farther considered and adjudged, that 
each of said lots of land, or so much thereof as will be sufficient to satisfy 
and pay the judgment, be sold; and this judgment is to be entered as a several 
judgment against the owners of each lot of land, described in the report and 
list, and the land itself, for the taxes, interest and costs due upon the same.

All of that part of this order, which professes to render a judgment against 
the owners of the land, is void, for in this proceeding the court has no 
authority to render a personal judgment. The whole proceeding is against the 
land itself. But the order does not stop with the judgment against the owners. 
A judgment is also rendered against the land itself. The order, in fact, 
contains two judgments, for the same demand and for the same amount—the one 
against the owners, and the other against the lands. The first was without 
authority; the other was what the court was authorized and required to do. We 
do not think that the judgment, which was rendered against the land by 
authority of law, was made void, because in the same order is contained a 
judgment against the owners, which was rendered in the exercise of an usurped 
authority. This latter was as void and harmless as if it had never been 
written. In this collateral proceeding, at least, that part of the order may 
be treated as surplusage. It being utterly harmless, as against the party, he 
ought not to claim a benefit from it, by insisting, that it vitiated that 
which was done by the court within the pale of its authority, and which was 
otherwise obligatory.

Some question was made upon the argument, whether any judgment was in fact 
rendered against the land, because the technical words of a judgment are not 
used in its condemnation, and because the verb is placed in the infinitive, 
instead of the indicative, mood. This, however, we think, is but a cavil about 
terms.

After a judgment is rendered against, the owners of the land, the order 
declares that "this judgment is to be entered against, the land itself, for 
the taxes, interests and costs due upon the same." The intention and 
understanding of the court, in using these words—admitting that the form of 
expression is that of the court, instead of the clerk—cannot be doubted. The 
idea intended to be expressed, and which is unavoidably understood, is, that 
by that order of the court, a judgment was rendered against the land. We 
cannot avoid this understanding, any more than as if the most technical 
language had been employed in rendering the judgment against the land. Bad 
grammar does not vitiate. But by supplying a word which may be fairly 
understood, even this objec tion to understanding this order as final is 
obviated. Read the expression: "This judgment is to be considered as entered, 
as a several judgment against," etc.; and all idea of a subsequent order, to 
make the judgment final and complete, at once disappears. We do not 
understand, and are not willing to hold, that a judgment is void, because the 
technical language of approved forms, is not used in expressing it. A 
judgment, like all other writings, is designed to convey ideas, and consists 
in the ideas conveyed, and when these ideas are so expressed as to be clearly 
understood, we are not at liberty to say there is no judgment, because the 
same ideas were not expressed in more technical or grammatical language.

Rejecting, then, as surplusage, that part of this order which pretends to 
render a personal judgment against the owners of the land, and we have left 
all of the substance of the judgment, which the statute requires to be entered 
up in such a case, although the precise form given in the statute is not used. 
And now we will inquire whether that precise form was indispensable.

After giving the form, the statute declares: "The form, as hereinbefore set 
forth, shall be pursued as near as the nature of the case will permit." It is 
not pretended that the Circuit Court supposed that this departure from the 
form given, was rendered necessary by anything peculiar in the nature of the 
case.

It is a well settled rule of the common law, that neither irregularity nor 
informality will render a judgment void: Egarton v. Hart, 8 Verm., 208. Our 
legislature has afforded a most conclusive reason for determining, that want 
of form shall not vitiate judgments, rendered in favor of the state for taxes 
due her, any more than in an ordinary case between individuals. The twelfth 
section of the statute of jeofails, which is as follows: "This chapter shall 
extend to all suits in any court of record, for the recovery of any debt due 
the state, or any duty or revenue thereto belonging, and also to all writs of 
mandamus and informations of the nature of quo warranto and proceedings 
thereon." This judgment was rendered in a suit for the recovery of revenue due 
the state, and is necessarily included in the express provisions of this 
statute. And there is a fitness and propriety, too, in providing, that the 
interests of the state, in suits affecting her pecuniarily, should not suffer, 
for the want or lack of form, any more than the rights of parties, in suits 
between individuals.

To suppose otherwise, would be opposed to all the well-known instincts of 
legislative bodies.

Should we hold that a departure from the prescribed form renders the judgment 
in this proceeding a nullity, we should have to carry the same principle into 
other proceedings, the forms of which are prescribed by the legislature. It 
would be difficult to contemplate the extent of the mischief which would 
result from such a rule. The statutes abound in forms, which are prescribed as 
peremptorily as is the form of this judgment, a departure from which has never 
been held to vitiate the proceeding. We will only advert to the statute 
concerning justices of the peace and constables. That statute creates an 
inferior jurisdiction, in whose favor no presumptions are indulged, and where 
a strict conformity to the law conferring the jurisdiction is required. In 
that statute, the form of the summons, and of the warrant to hold to bail, and 
of the subpoena for witnesses, is given and required to be used in precisely 
the same language, by which the court is directed to enter the judgment, in 
the form given in the statute under consideration. It has never been 
contended, and probably never will be, that a departure from those forms, if 
the substance is expressed in those writs, would render the proceeding before 
the justice utterly void and him a trespasser. In the same statute, and in 
still more positive language, is the form of the venire for jurors given. The 
forty-fifth section says: "The following shall be the form of the writ for 
summoning jurors, viz:" Although there is no latitude given for a particle of 
variation from the form, yet we do not think a juror would be at liberty to 
disobey the mandates of the writ, substantially the same as that given in the 
statute, but varient in form. In these laws the legislature never intended to 
prescribe an iron unyielding rule, any deviation from which would break the 
law. We think it cannot be maintained, that the form of the judgment given 
here is of the essence of the law. The substance of the statute is, that the 
order of the court shall show that certain preliminary steps have been taken, 
and that a judgment shall be rendered in favor of the state against the land 
for the amount of the taxes, interest and costs due the state, and that the 
land be ordered to be sold to pay the same. When the judgment, as in this 
case, contains these essential elements, we cannot say that it is a nullity, 
however improper and unadvised it may be to depart from the prescribed form.

But, on this subject, we are not without authority directly in 
point, in our own court. In Atkins v. Hinman, 2 Gil., 437, the judgment 
omitted the following important words, which are contained in the statutory 
form, to wit: "That the taxes thereon remained due and unpaid on the day of 
the date or the said collector's return." The report of the collector which 
showed the nonpayment of the taxes, being copied into the judgment, was held 
sufficient evidence of that fact, without the recital required by the form. 
Another omission was, that the day on which the collector had made his return 
was not inserted, and that was held not to be fatal, inasmuch as that fact 
could be ascertained by reference to the files of the court. Some matters were 
also inserted in that judgment, not required by the form, but the objection on 
that account was not sustained. On the subject of the departure from the given 
form, the court said: "The omissions and variations in the judgment are merely 
in matters of form, and evidently clerical mistakes, which ought not to 
vitiate the judgment, especially when it is apparent from the face of the 
proceeding, that the court had jurisdiction of the subject matter, and 
proceeded to make the proper adjudication." It is not to be denied that, so 
far as the essentials of the judgment required by the statute are concerned, 
there were more omissions in that judgment than in the one before us, and the 
case establishes beyond controversy, that it is not indispensable to pursue 
the form given in the statute.

The case of Hinman v. Pope, previously decided in 1 Gilman, 131, in nowise 
conflicts with the views we have taken. One of the questions decided in that 
case was, as to the validity of the precept or process issued to the 
collector, and upon which the sales were made. By the statute, the clerk was 
required, to make out and deliver to the collector a certified copy of the 
collector's report, together with the order of the court, thereon, which 
should constitute the process on which all lands should be sold for taxes. In 
that case, no such paper, either in form or substance, had been furnished by 
the clerk. On the contrary, he issued an order on his own responsibility, 
commanding the collector to make the sale, without any intimation that it was 
issued in obedience to an order of the court, or that the court had ever 
entered any judgment against the land, or that even the subject matter had 
ever been before the court in any way. Upon its face the paper was void. It 
was neither a good common law execution, nor such a process as the statute 
required. The court said: "The paper offered in evidence was not such process, 
either in form or substance, as is required to be issued by the thirty-first 
section and was consequently void. It does not recite that any judgment has 
ever been rendered by the court. It is a mere mandate of the clerk, to sell 
certain lands for taxes, to be found in a collector's list, appended to the 
paper. An execution to be valid must show on its face that such a judgment has 
been rendered by a competent court as will justify its emanation." Here we see 
the defect was of a substantial and not of a formal character. That case was 
not put upon the ground that the process was issued in a special proceeding, 
which required greater strictness than in the exercise of a common law 
jurisdiction, but the process was held to be void, because it would have been 
void in a common law proceeding.

As the question is now presented, the validity or effect of this judgment is 
in no wise impaired, for the reason that it is not clothed with the same 
conclusive attributes, which attach to an ordinary judgment. The statute, it 
is true, allows it to be attacked collaterally, or rather allows the title 
acquired under the sale to be defeated, by proving any one of four specified 
things, to wit: "Either that the said land was not subject to taxation at the 
date of the sale; that the taxes had been paid; that the land had never been 
listed or assessed for taxation; or, that the same had been redeemed. By 
proving either of the three first, an attack is made upon the judgment itself, 
and by the last, the tax title is defeated by something subsequent to the 
judgment. In this case, no question arises under these provisions of the 
statute. No attempt has been made to impair the effect of the judgment, in any 
mode authorized by law. Except it be attacked in the mode thus authorized, it 
is as conclusive as if no provision had been made authorizing it to be 
questioned collaterally. There is no difference between prima facie and 
conclusive evidence, where there is no rebutting or countervailing testimony 
adduced. There can be no pretense here, that the judgment, as against the 
lands, does not prove what it purports to establish, but the complaint is that 
there is no such judgment. We, however, think otherwise. We are of opinion, 
that this order of the court shows all the facts, which the statute requires 
should be shown by the judgment, and that it does contain a judgment in favor 
of the state, against the lands for the proper amount, to satisfy which the 
lands are ordered to be sold. That the order also contains a separate personal 
judgment against the owners of the lands, may be admitted; but, as the right 
now claimed does not at all depend upon that part of the order, we entertain 
no doubt that it may, in this action, be rejected as surplusage, and that it 
does not render void that part of the order which is otherwise valid. What 
effect it would have, were the question raised directly by writ of error or 
appeal, we express no opinion.

Let the judgment be reversed, and the cause remanded.

Judgment reversed.

Trumbull, J., dissenting. I cannot, assent to the foregoing decision.

The judgment offered in evidence is, according to my understanding, simply a 
judgment in personam against the owners of the lands, and not a judgment 
against the lands themselves, which alone the court had jurisdiction to 
render. It reads as follows: "It is considered and adjudged by the court, that 
the state of Illinois do severally recover of the several owners of the lands, 
described in the report and list aforesaid, the taxes due upon each of said 
lots of land, being the same set down in figures opposite to each lot of land, 
together with the interests and costs due thereon, and the costs of this 
proceeding; and it is further considered and adjudged, that each of said lots 
of land, described in the list aforesaid, or so much thereof as will be 
sufficient, be sold, to satisfy and pay this judgment and the costs of sale, 
and this judgment is to be entered as a several judgment against the owner of 
each lot of land, described in the report and list, and the land itself, for 
the taxes, interest and costs due upon the same."

The judgment against the owners of the lands is confessedly void, for the 
reason that the court had no jurisdiction over their persons, and we look in 
vain into this order for any other judgment than the one against the owners. 
It is true that the order contains a direction for the entry of a several 
judgment against the land itself, but where is that judgment? Surely not in 
this order, unless the direction to enter a judgment and the entry of it mean 
one and the same thing—a proposition to which I cannot assent.

But if it were admitted that the direction to enter judgment against the land 
itself for the taxes, interest and costs due upon the same-which is all that 
is left of the order after striking out that part which refers to the personal 
judgment—was equivalent to the entry of such a judgment would be void. It 
would not conform even substantially to the form of the judgment required by 
statute, and would be uncertain both as to what land it was against, and for 
what amount of taxes would contain no reference to the reported list from 
which those facts could be ascertained, and if it did, the judgment would not 
be for the amount of tax there reported, but for the amount due whether 
reported or not. Such a judgment would be void for uncertainty.

The legislature, in conferring jurisdiction upon the courts to enter judgments 
against delinquent lands, has prescribed the form of such judgments, and 
required the courts to pursue it, as near as the nature of the case will 
admit. This requirement of the law was wholly disregarded in the entry of the 
judgment under consideration. It is admitted that the form of the judgment, 
without anything in the nature of the case to require it, is wholly varient 
from the one prescribed by statute. In my opinion, the court was as much bound 
to comply substantially with the requirement of the law, prescribing the form 
of the judgment, as in any other particular. I think the Circuit Court decided 
rightly in excluding the judgment from the consideration of the jury.

------------------
(a) Such a judgment cannot be attacked in a collateral proceeding: Buckmaster 
v. Carlin, 3 Scam., 104; Swiggart v. Harber, 4 Scam., 364; Rigg v. Cook. 4 
Gil., 336; Young v. Lorain, 11 Ill., 624; Buckmaster v. Ryder, post 207; 
Wimberly v. Hurst, 33, Ill., 166 (annotated edition), and note.

(b) The judgment in such case is in rem against the land, and not in personam 
against the owners of the land: Olcott v. The State, 5 Gil., 481; St. John v. 
City of E. St. Louis, 50 Ill., 92. And a general judgment and execution is 
wrong: Brown v. City of Joliet, 22 Ill., 125; Pidgeon v. The People, 36 Ill., 
249.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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