Peoria County IL Archives Court.....Spellman, V Curtenius 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 25, 2008, 3:47 pm

Source: Records Of Cases Illinois
Written: 1850

John Spellman et al., plaintiffs in error, v. Alfred G. Curtenius, defendant 
in error.

Error to Peoria.

A regular tax deed, founded upon a valid precept and judgment, is prima facie 
evidence of every fact necessary to authorize a recovery upon it. (a) Some of 
the facts evidenced by such a deed shall only be controverted by a person, who 
first shows that he or the person under whom he claims title, had title to the 
land at the time it was sold for taxes, or that title was obtained from the 
United States, or this state, after it was sold, or that all taxes due, have 
been paid.

Other facts of which the deed is prima facie evidence may be controverted by 
any person. 

If the Judgment, describing the lands to be sold for taxes, against which it 
is entered, shows the year for which the taxes are due, it is sufficient; it 
need not show the name of the patentee, or present owner, nor the valuation, 
nor the county in which it lies. (b)

The statute, requiring each tract of land to be listed and valued separately, 
does not require that such listing shall be upon the smallest legal 
subdivisions of land, but that two or more disconnected tracts, shall not be 
listed and valued together. (c)

To give the court jurisdiction, the collector should make a report and give 
notice of the application for judgment, substantially as required; if either 
of these is defective, the prima facie case made by the deed is rebutted. (d)

The amount of costs on a tax sale cannot be made a question, when the judgment 
comes collaterally in issue. (e)

The land sold for taxes, is to be taken off the east side of the entire tract 
as it was sold.

The intention of the law is, that when less than the whole tract is sold for 
taxes, that the quantity sold shall be taken from the eastern part of the 
tract, and a line is to be drawn due north and south, far enough west of the 
most eastern point of the tract, to make the requisite quantity.

Limitation of twenty years' possession will not commence running until after 
the land is purchased from the United States.

A certificate, showing that a party proved himself entitled to a pre-emption, 
does not constitute such a title or claim, or color of title, as can be made 
the foundation of a seven years' position, as against a party who subsequently 
entered the land under another pre-emption. (f)

This action of ejectment was tried at the March term, 1850, of the Peoria 
Circuit Court, before Kellogg, Judge, and a jury, and resulted in a verdict 
and judgment for the plaintiff below. The defendants below, sued out this writ 
of error. The lot sought to be recovered, was number four, in block fifty, of 
Bigelow and Underhill's addition to Peoria.

The judgment against the land for taxes is in the following form:

"Whereas Julius A. Johnson, collector of said county, returned to the Circuit 
Court of said county, on the twenty-sixth day of May, A. D. 1845, the 
following tracts or parts of tracts of land as having been assessed by the 
assessor of the said county of Peoria, for the year 1843, and that the taxes 
thereon remain due and unpaid, on the day of the date of the said collector's 
return, and that the respective owners, have no goods or chattels within this 
county on which the said collector can levy for the taxes, interest and costs 
due on the following described lands to wit:

"Description; No. of acres; Tax; Costs

S. W. & S. E. 9, T. 8 N., 8 E; 150; $21.00; .40

"And whereas due notice has been given of the intended application for a 
judgment against said lands, for the taxes, interest, and costs due and unpaid 
thereon, for the year herein set forth, therefore, it is considered by the 
court, that a judgment be, and is hereby entered against the aforesaid tracts 
of land, and parts of tracts, in the name of the state of Illinois, for the 
sum annexed to each tract or parcel of land, being the amount of taxes, 
interest, and costs due severally thereon; and it is ordered by the court, 
that the said several tracts of land, or so much thereof as shall be 
sufficient of each of them to satisfy the amount of taxes, interest and costs 
annexed to them, severally be sold as the law directs."

All other facts necessary to a full understanding of this case, are contained 
in the opinion of the court.

C. Ballance, for plaintiffs in error.

N. H. Purple and E. N. Powell, for defendants in error.

Trumbull, J. This was an action of ejectment brought to recover the possession 
of lot number four, in block number fifty-one, in Bigelow and Underhill's 
addition to the town of Peoria.

Curtenius, who was plaintiff in the court below, gave in evidence a 
certificate of the register of the land office at Quincy, showing the entry by 
John L. Bogardus, on the fifteenth of November, 1837, of the southeast 
fractional quarter of section number nine, in township number eight north, of 
range number eight east of the fourth principal meridian, proved the laying 
off of said fractional quarter into town lots, that the defendants were in 
possession of the premises sued for at the commencement of the suit, and 
traced title thereto by a regular chain of conveyances from Bogardus to 
himself.

To meet this prima facie case, the defendants below, who were tenants of 
Charles Ballance, sought to set up an outstanding title in their landlord, 
derived from a sale of the premises in question, for the taxes of 1843. In 
support of this title they offered in evidence, a judgment of the Circuit 
Court of Peoria county, rendered at the May term 1845, against the following 
tract of land, for the taxes of 1843, to wit:

"Description; No. of acres; Tax; Costs  

S. W. & S. E. 9, T. 8 N., 8 E.; 150; $21.00; .40"

Also a precept in the usual form, in which the land is described in the same 
manner as in the judgment, and a tax deed conveying to said Ballance, "one 
acre of land off of the east side of the southwest and southeast fractional 
quarters of section number nine, of township eight north, in range eight east, 
situated in the county of Peoria."

The court excluded this deed from the jury, and the plaintiff had judgment for 
the premises in question.

A regular tax deed, founded upon a valid judgment and precept, is made by the 
statute prima facie evidence of every fact necessary to authorize a recovery 
upon it; but as it is only prima facie evidence, it follows that there must be 
some way of contesting the case made by the deed, else it would be conclusive 
of those facts of which the statute expressly declares it shall be prima facie 
evidence merely. The law provides that some facts, of which the deed is prima 
facie evidence, shall only be controverted by a person who first shows that he 
or the person under whom he claims title, had title to the land at the time it 
was sold for taxes, or that the title was obtained from the United States, or 
this state, after the sale, and that all taxes due upon the land have been 
paid. Other facts of which the deed is merely prima facie evidence, may be 
controverted by any one. The plaintiff below did not put himself in a position 
to defeat the tax title, by proof of any one of the facts which the owner of 
the land, who shows that all taxes upon it have been paid, is alone permitted 
to establish, for although he showed title in himself at the time of the sale, 
he did not show that no taxes were due from the land at the time of the trial: 
Curry v. Hinman, 11 Ill., 429. The facts which he attempted to prove, viz., 
that the lot was not subject to taxation, as land, and that the taxes upon it 
for the year for which it was sold, had been paid, he was not in a condition 
to show, and it is therefore unnecessary to determine what effect that 
evidence might otherwise have had upon the case.

The only objections to the tax title which it is important to notice, are such 
as any and all persons claiming adversely thereto are permitted to make. These 
objections are either on account of some defect apparent upon the face of the 
judgment, precept, or collector's deed; or they may arise from the want of 
such a report and notice, as would give the court jurisdiction to enter the 
judgment, or from showing either that the land was not advertised for sale as 
required by law, that it was not sold for taxes as stated in the deed, that 
the grantee in the deed was not the purchaser, or that the sale was not 
conducted according to law, either of which facts any person is at liberty to 
show, for the purpose of excluding the deed from the jury, without first 
showing that he owned the land at the time of the sale, and that no taxes were 
due upon it.

The objections taken to the judgment are, that it does not state either the 
name of the patentee or present owner of the land, its valuation, the county 
in which it lies, nor the year for which the taxes were due. It is admitted 
that neither of these facts appears in that part of the judgment, describing 
the lands against which it is entered, but the preceding part of the order 
shows the year for which the taxes were due, and the law does not require 
either of the other omitted facts to be stated in the judgment.

It is also objected that the judgment is against two separate and distinct 
tracts of land, and therefore void. This objection arises from a 
misapprehension in point of fact. The judgment is not, as has been supposed, 
against two separate parcels of land, but against one entire tract including 
within its boundaries, it is true, what might very conveniently have been 
described in two separate parcels. Such also is the case when a quarter 
section is listed as one tract, and judgment pronounced against it as such, 
and yet who over supposed a judgment against an entire quarter void, because 
it embraced within its boundaries what might have been described, by legal 
subdivisions, as four tracts? If one hundred and sixty acres can be assessed 
and sold for taxes, as one tract, cannot one hundred and fifty, or one hundred 
and twenty acres? In describing the last mentioned quantity, by legal 
subdivisions, it would be impossible to avoid what, if taken separately, would 
be a forty and an eighty acre tract, yet if the description included three-
fourths of the same quarter section, the quantity of which was given as one 
entire tract, the whole one hundred and twenty acres would no more constitute 
two separate tracts of land than it would if described by metes and bounds. 
The statute requiring each tract of land to be listed and valued separately, 
does not mean that an entire tract must be subdivided into the smallest legal 
subdivisions of which it is susceptible, but simply that two or more tracts 
disconnected from each other, so as not to be embraced within the same general 
description, shall not be valued together. In this case, had the hundred and 
fifty acres been described by metes and bounds, or as the south fractional 
half of section nine, no one would have thought the judgment void, because 
within the description of the land two fractional quarters were embraced. In 
the judgment, and all the previous proceedings, the whole one hundred and 
fifty acres is treated as one entire tract. The quantity of land in both 
quarters is stated together, and there are no means of ascertaining from the 
record the number of acres which each fractional quarter separately contains. 
It was just as proper to enter judgment against the southeast and southwest 
fractional quarters of section nine, embracing one hundred and fifty acres, as 
it would be to enter judgment against an entire quarter section.

No objections were made to the precept except such as have already been 
noticed, as applying to the judgment, nor was any attempt made in the court 
below, to show either that the land was not advertised for sale, as required 
by law, that it was not sold for taxes, as stated in the deed, that Ballance 
was not the purchaser, or that the sale was not conducted according to law.  
If, therefore, the court had jurisdiction to render the judgment, and the deed 
was regular upon its face, it was improperly excluded from the jury.

To give the court jurisdiction, it is essential that the collector should make 
a report, and give notice of the application for judgment, substantially, as 
required by the statute. The report and notice, are the foundation of the 
whole proceeding, and without them, the court would have no authority to enter 
judgment; and although the deed is itself prima facie evidence, that the 
proper notice was given and report made, yet when the party, as was done in 
this case, gives the notice and report, in evidence, the prima facie case, 
made by the deed, will be destroyed, if either is essentially defective.

No exceptions have been taken to the notice, and the report, though not in the 
precise form required by the statute, contains all that is essential to give 
the court jurisdiction. It is headed, "List of lands, and other real estate, 
situated in the county of Peoria, and State of Illinois, on which taxes remain 
due and unpaid for the year 1843." Then follows a description of the land, 
with the amount of tax due upon it, the same as in the judgment, and at the 
foot of the report, is a statement that the costs upon each tract of land and 
town lot then accrued, was ten cents. When the court has before it a 
collector's report, properly headed, giving a description of the land, the 
amount of tax due upon it, and for what year, a case is presented authorizing 
the court to act, if the proper notice has been given. All these facts were 
before the court which rendered the judgment under consideration. Some 
objection was made, that the amount of costs was not correctly stated in the 
report and judgment. This is immaterial, as it does not go to the jurisdiction 
of the court to enter a judgment. It might be cause for reversing it on a 
direct proceeding by appeal or writ of error, but cannot be made a question, 
when the judgment comes collaterally in issue.

It is undoubtedly the duty of all officers charged with the execution of the 
revenue law, to follow the forms prescribed, and a failure to do so, might 
often be fatal to a judgment in a direct proceeding to reverse it, but it was 
held in the case of Chesnut v. Marsh, ante, 173, that a failure to follow the 
forms prescribed, was not fatal to a judgment in a suit for taxes, earning 
collaterally in question, provided the court had jurisdiction of the case. 

Some objections have been taken to the tax deed, which it is
proper to notice. The law is, that a person offering to pay the taxes and 
costs upon a tract of land exposed at a sale for taxes, for the least 
quantity, shall be the purchaser of such quantity, which shall be taken off of 
the east side of such tract, and it has been supposed that, inasmuch as the 
deed to Ballance is for one acre off of the east side of the southwest and 
southeast fractional quarters of section nine, that the acre must be taken 
from two tracts, and is therefore void. This objection is of the same 
character as one which was made to the judgment, and must receive the same 
answer.

It is founded upon a misapprehension in fact, upon the mistaken idea, that one 
hundred and fifty acres of land cannot be described as one tract. That the 
description adopted, was intended to, and does in fact, include the whole 
quantity in one entire tract, has already been shown, and it is not to be 
subdivided for the purpose of giving the tax purchaser a part of his acre off 
of the east side of each subdivision, but the whole acre is not to be taken 
off of the east side of the entire tract as it was sold.

Another difficulty has been suggested, that the southeast and southwest 
fractional quarters run to a point on the east, and have no eastern side. The 
intention of the law is, when less than the whole tract is sold for taxes, 
that the quantity sold should be taken from the eastern part of the tract, and 
a line is to be drawn due north and south, far enough west of the most eastern 
point of the tract of land sold, to make the requisite quantity. The law must 
have a practical effect, and because a tract of land does not happen to be in 
a form, so as to have, strictly speaking, an east side, it is not to be 
presumed that the legislature intended such tract to be exempt from this 
general provision of the revenue law. To give it such a construction, would be 
emphatically sticking in the bark.

Some other questions were raised in this case, which it is proper to notice, 
as they would again arise upon another trial. 

The defendants attempted to prove twenty years' possession of the premises in 
question, also seven years' possession under claim of title, and, as the 
foundation of title, proposed to give in evidence, various certificates, 
showing that different persons had proved a right of pre-emption to the land 
in dispute, before it was entered by Bogardus; also, that an award had at one 
time been made in reference to the land, by which the lot in question, through 
mistake, was alloted to the parties through whom the plaintiff derived title, 
when, in fact, it was designed by the arbitrators to have been awarded to said 
Ballance. All this mass of evidence was properly rejected by the court.

The defendants could not rely upon the possession of twenty years, because the 
record shows that the land was not purchased of the United States till 1837; 
till then, therefore, the statute would not begin to run, and, since that 
time, twenty years have not elapsed.

A certificate of a land officer, showing that a party, at one time, proved 
himself entitled to a pre-emption, when the record shows that the same land 
was subsequently entered by another individual, under a different pre-emption 
claim, does not constitute such a title, or claim, or color of title, as can 
be made the foundation of a seven years' possession, under the statute.

The award, offered in evidence, showed no shadow of title in Ballance, and the 
attempt to reform it by parol evidence, on the trial of an action of 
ejectment, so as to make it the foundation of an equitable title upon which to 
base a seven years' possession, was wholly inadmissible.

The judgment must be reversed, for the reason that the court below excluded 
the tax title deed from the consideration of the jury. Judgment reversed, and 
cause remanded.

Judgment reversed.

-----------------
(a) Before a tax deed can be used as evidence of title, the party relying on 
it must produce a valid judgment and precept: William) v. Underhill, 58 Ill., 
137, and cases cited; Baily v. Doolittle, 24 Ill., 577. As to the facts of 
which a tax deed is prima facie evidence, see R. S. 1874, ch. 120, sec. 224. 
See also Dukes v. Rowley, 24 Ill., 210.

(b) A judgment under which lands are sold for the payment of taxes, is good, 
if it contain the substance of the form required by statute: Chesnut v. Marsh, 
ante, 173.

(c) Pitkin v. Yaw, 18 Ill., 251, accord.

(d) Pickett v. Hartsock, 15 Ill., 282; Morgans v. Camp, 16 Ill., 175; Fortman 
v. Ruggles, 58 Ill., 207; Brown v. Hogle, 30 Ill., 119, and cases cited, 
accord. As to what the collector's notice must contain, see Charles v. Waugh, 
35 Ill., 315 (annotated edition), and note.

(e) Merritt et al. v. Thompson, 13 Ill., 716, accord.

(f) As to color of title generally, see Brooks v. Bruyn, 35 III., 392 
(annotated edition), and notes; Kruse v. Wilson, 79 Ill., 233; Dickenson v. 
Breeden, 30 Ill., 279. As to color of title and good faith, under secs. 8 and 
9, R. S. 1845, ch. 15 (R. S. 1874. ch. 83, secs. 6 and 7), see Elston v. 
Kennicott, 46 Ill., 187 (annotated edition), and notes; Clark v. Peckenpaugh, 
Id., 11, and note; Winters v. Haines, 84 Ill., 385; Hodgen v. Henrichsen, 85 
Ill., 259.

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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