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37 Ill. 82

Conway v. Cable

Illinois Supreme Court

Decided April 15, 1865

Illinois Supreme Court · decided 1865-04-15

<p>Writ of Error to the Circuit Court of Bock Island county; the Hon. Ira 0. Wilkinson, Judge, presiding.</p> <p>This was a suit in Chancery, brought by Miles W. Conway, against Philander L. Cable and Cornelius Lynde, Jr., to the January term, 1863, of the Bock Island Circuit Court. The bill alleges that complainant had been for five'years past, and then was, the owner in fee simple, of lots one, two, seven and eight, in block four, in an addition to the town of Moline, in that county, and during that time had been in actual possession, and occupancy thereof. It alleges that a fraudulent combination had been entered into, prior to the sale of lands for taxes in 1860, by the collector, supervisors, and school directors, by which purchasers were only required to pay, at the time of purchasing lands, or town lots for delinquent, taxes, the amount due the State. That at the sale, defendants, under this arrangement, became the purchasers, for the taxes of 1858-9, and obtained a sheriff’s deed for the lots, in December, 1862, under the sale.</p> <p>The bill charges, that the sale was irregular in various particulars, such as, an insufficient assessment, an insufficient notice, and an invalid judgment, under which the sale was made; that the defendants became the purchasers at the sale, under the agreement, which was fraudulent, and only paid the taxes due the State. The bill prays that defendants be required to surrender the deed, and that it may be cancelled, and the deed and sale set aside, so far as it may affect complainant, and for a perpetual injunction and for general relief.</p> <p>The defendants filed their joint and several answer. They admit that such an agreement was entered into, but say that they were to furnish the money necessary to pay the taxes due the State, on land they might purchase, which, with interest and expenses, was to be first refunded to them, out of redemptions, and the remainder of the proceeds of redemptions was to be divided amongst the parties. The answer also alleges, that there was a combination entered into by the citizens of the county, to prevent a sale of lands for delinquent taxes, and that it thereby became necessary that the agreement complained of should be made, to prevent the success of the combination formed to prevent the sale.</p> <p>It is likewise admitted, as charged in the bill, that there are defects, in not complying with the revenue laws, in conducting the sale of 1860, such as would prevent defendants from recovering the premises by ejectment. But it is claimed that these defects were cured by an act of the general Assembly, adopted on the 25th day of February, 1861. It declares that the arrangement entered into between defendants, and the officers conducting the sale, and managing the affairs of the county, is ratified and legalized. They also set up as a defense, and rely upon the act of the 21st of February, 1861, (Sess. laws, p'. 170,) which declares, that all deeds hereafter made for lands sold for taxes, shall be void if the taxes have been paid before the sale, or the land was not subject to taxation, or has been redeemed, or if the notice required by the constitution has not been given, or the description of the land was not sufficiently definite; and it declares that the validity of all such deeds shall not be questioned, in any suit or controversy, for any other cause, unless the party desiring to do so, shall tender to the claimant under such deed, or deposit in court for his use, the amount of redemption money now required by law, with ten per cent, interest per annum, from the date of the deed till the time of such tender or deposit. After which the validity of the deed may be.questioned, in the same manner as was previously allowed by law.</p> <p>A hearing was had in the court below, when a decree was entered as of January term, 1863. The decree finds that the deed made by the sheriff to defendants being subsequent to, is within the terms of subject to the statute, of February 21st, 1861, entitled “ An act to amend the revenue law,” and that said act is constitutional. The decree dismisses the bill. The case is brought to this court, by writ of error, to reverse the decree; and the following errors are assigned:</p> <p>1. “ The Circuit Court erred in rendering a decree against plaintiff in error, and in dismissing his bill.” .</p> <p>2. “ The Circuit Court erred in not rendering a decree in favor of plaintiff in error in said cause.”</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1865-04-15

How this case has been cited

Cited by 23 later decisions (1 by the Supreme Court) — most recently June 1943

22 state decisions — followed in 13 states

60186518701880189019001910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Mr. Chief Justice Walker

¶1delivered the opinion of the court:

¶2It being admitted that the sale was insufficient to pass title or to constitute a defense to the bill, the question is presented whether a defense is given by either of those acts. The act of the 22d of February, 1861, in terms fully ratifies and confirms the arrangement entered into by the officers and the purchasers at the sale. It also declares that sales made and certificates given shall not be construed to be invalid, by reason of the arrangement, by the failure of purchasers to pay the amount of their hids otherwise than as contemplated by the arrangement. It will be seen that the arrangement, at the time it was entered into, was illegal and without warrant v of law. If, therefore, it has any validity, it must be by reason of this enactment. But few principles are better settled than that the Legislature is powerless to divest, by enactment, an individual of a vested legal right. That laws, prospective in their character, enjoining the performance of an act, and declaring that its omission shall subject the person omitting the duty to a penalty, is clearly within the legislative power, is equally true. And that the Legislature may pass a law authorizing sales for taxes subsequently made, to be on credit, there can be no doubt.

¶3In such a case as the present, however, it seems to us, there can be no doubt that a citizen may permit his real estate to pass to sale for delinquent taxes, and rely upon the want of compliance with the law authorizing a sale. He, by the law then in force, incurred no forfeiture, by permitting his lands to be struck off at a sale for taxes, not conducted according to law. The purchaser was bound to see that all of the essential requirements of the law had been performed before he could acquire any title at a tax sale. This proceeding, by which an individual is deprived of his property, in a summary mode, and usually for but a trifling part of its value, has always been held, to require a strict compliance with the provisions of the law authorizing the sale. Ho one can imagine, that were a sheriff to sell real estate without a judgment, or an execution, that the Legislature could afterwards impose such a condition upon the owner, before he could make a defense to a suit for the recovery of the land. To do so, would be to transfer, by legislative enactment, the property of one person to another. We are unable to see any difference between an invalid sheriff’s and an invalid tax sale. As well might the legislature attempt to impose conditions upon the assertion of title by a person who had executed a void deed, when sued for the recovery of the land. Such legislation, under our form of government, has always been supposed to be unwarrantable, as being opposed to the principles of natural justice, and depriving persons of their property contrary to due course of law.

¶4In the case of Marsh v. Chesnut, 14 Ill., 223, a construction was given to two acts amendatory to the revenue laws. The act of 1849, which was under consideration, declared that all assessments of property for taxes, made in the year 1848, and previous years, and which were not completed within the time required by law, should be as good, valid and effectual as if made and returned in strict conformity to law. The court held that this enactment did not, in anywise, affect sales for taxes made previously to the passage of the law. The amendatory act of 1851 declared that when a county or township assessor had heretofore failed, or should hereafter fail, to complete his assessment in the time required by law, such failure should not vitiate such assessment; but declared it as valid and legal, as if completed in the time required by law.'

¶5This latter act was also held prospective in its operation. And the court say that unless it is imperatively demanded, the acts in question should not receive a construction givin g them a retrospective operation. “ They were passed long after the proceedings in the case were concluded. Laws of such a character ought not to have a retrospective operation Under the law in force when the proceedings were had, the purchaser at the sale acquired no title to the land. The assessment being invalid, there was no foundation to support the subsequent proceedings. The owner had a perfect defense to any claim of title under them. He had only to point out the defect of the sheriff’s deed. But if the provisions of these statutes are to retroact upon the proceedings, the case is entirely changed. What before was insufficient to pass title, became competent for the purpose. … Legislation of this kind may well be characterized as replete with injustice.’' The same rule was distinctly announced in the case of Thompson v. Alexander, 11 Ill., 54, upon a careful review of the authorities.

¶6In all civilized governments, laws impairing the validity of contracts, and divesting the rights of property, are considered unjust and odious. And such enactments never receive such a construction, unless required by the language, when so plain as to admit of no other interpretation. In the case -under consideration, the transaction was complete before the law was adopted, and the answer may have relied upon the defects, which are admitted to have existed, but are claimed to have been cured by the act of 22d February, 1881. To give it force, therefore, would be to transfer the property of the former owner, not by force of a valid and binding sale for taxes, but by the declared will of the legislature, that his title should pass from him, and vest in the purchaser at a tax sale, which conferred no right. This the legislature have not the power to do, whether by direct and positive action, or by rendering valid and binding acts which were nugatory.

¶7In the act of the 21st of February, 1861, no language is found applying in terms its provisions to previous sales. It relates to deeds made after the adoption of the law, but does not otherwise refer to previous sales, and hence we must conclude that it was only designed to apply to sales subsequently made, otherwise different language would have been employed. It may be so construed as to give it full effect, and have only a prospective operation. And we can hardly suppose that a different design operated upon the General Assembly in the adoption of the law. But to impose new terms and conditions, after the sale has been made, is so unjust that we cannot believe the Legislature would attempt to do so, even if it had the power. If they may impose these conditions to such a sale, they may impose others destructive to the rights of the owner, or they may impose them in any other case, as a condition upon which the party having a perfect right may interpose a defense.' But when such a law is prospective in its operation, all persons have the opportunity of avoiding its operations.

¶8The cases of Marsh v. Chestnut, and Thompson v. Alexander, are in point, and settle this question. The court below, therefore, erred in dismissing the bill, and the decree must be reversed and the cause remanded.

¶9Decree reversed.

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