1. A defendant, claiming under an Illinois tax deed, who would
avail himself of the statute of Illinois, of February 21, 1861,
setting forth what facts may be shown to establish the invalidity
of such a deed, and precluding, except upon certain conditions, a
question of it for any other cause, must show not only a tax deed
in proper form, but show also a judgment under which the tax sale
was made.
2. On an objection to the admission of a deed because of an
alleged erasure and interlineation apparent on its face, the court
may properly admit the deed, leaving it to the jury to determine
whether there was any alteration.
3. A deed for lands in Illinois, executed in Virginia and
acknowledged in
Page 77 U. S. 27
conformity with its laws at the time of execution, may be
lawfully recorded in Illinois and read in evidence without further
proof of execution.
A statute of Illinois on the subject of sales of land for taxes,
passed 21 February, 1861, makes this enactment:
"All deeds hereafter made by the proper officer in pursuance of
sales of real estate for the nonpayment of taxes shall be held to
be null and void if it be shown that said taxes had been paid
before the sale, or that said real estate was not subject to
taxation, or that it had been redeemed from said sale, or if notice
required by the constitution was not given, or that the description
of said land was not sufficiently definite, and the validity of all
such deeds hereafter made by the proper officers, for real estate
sold for the nonpayment of taxes shall not be questioned in any
suit or controversy in this state for any other cause unless the
party wishing to contest the same shall tender to the claimant
under said tax deed, or deposit in the court in which such suit is
pending, for his use, the amount of the redemption money now
provided for by law, with ten percent per annum interest thereon
from the date of said deed to the time of said tender or deposit,
and after said tender or deposit is made, the validity of said deed
may be questioned in the same manner and to the same extent as now
provided by law."
At the time of the passage of this act, by the decisions of the
courts of Illinois, full and explicit, [
Footnote 1] a tax deed, executed by the proper officer,
had no validity unless founded upon a judgment against the parcel
of land in default for nonpayment of the tax, an order for the
sale, and precept thereon, and it was necessary that these
preliminary steps should be first shown in order to give any effect
to a title under the deed.
In this state of the law, one Herndon brought ejectment against
Little in the court below to recover possession of
Page 77 U. S. 28
a lot of land in Illinois, describing it. He gave in evidence
two patents, including the premises, from the government to one
Hood, each dated November 1, 1839, and a deed from Hood to himself,
dated February 4, 1842, and recorded in the recording office where
the land was, and rested.
The defendant, in his defense, offered in evidence a deed from
the sheriff of the county where the land was to a certain Peck,
including the premises, dated July 1, 1864, purporting to be a deed
given in pursuance of a sale for the nonpayment of taxes for the
year 1861, but he did not show a judgment under which the tax deed
was made. He offered also a quitclaim deed from Peck and wife to
one Bourland, dated July 1, 1864, and from Bourland and wife to one
Underhill dated April 29, 1865, and then offered in evidence five
tax certificates for taxes paid on the premises for the several
years therein mentioned, stating that the object of offering the
same in evidence was to recover the amount of the taxes and costs
paid upon the land, in case the deed from the sheriff should be
questioned as title by the plaintiff, under the terms of the Act of
February 21, 1861, and to defeat his using his patents as a title
if he refused to pay the taxes according to the statute. But the
court was of opinion that the defendant had not brought himself
within the statute for the reason, among others, that he must first
show there was a judgment, as the foundation of the tax sale and
deed. And so ruled. Judgment having been accordingly rendered for
the plaintiff, the other side now brought the case here.
The principal question argued here was whether upon a true
construction of the Act of February 21, 1861, the plaintiff was
bound to pay the taxes which had been paid by the defendant and by
those under whom he claimed, as a condition of being permitted to
attack the deed under the tax sale, the defendant taking the
position that upon a true construction of the act, the sheriff's
deed of the sale properly executed, with its recitals, was
sufficient evidence in the first instance to impose this condition
upon the plaintiff.
Some minor objections, it should be added, were taken
Page 77 U. S. 29
below by the defendant to the admission of evidence, as 1st., to
the admission of one of the patents, the ground of the objection
being an alleged erasure and interlineation, apparent, as he
asserted, on the face of the same, by the erasure of the word
"six," and the interlineation of the word "seven" therefor in
description of the premises. The court overruled the objection and
left it to the jury to determine whether there was any alteration.
2d, to the admission of the deed from Hood to Herndon, the ground
of this objection being the acknowledgment. But the acknowledgment
was in conformity with the requirements of the law of Virginia. And
by statute of Illinois, [
Footnote
2] a deed acknowledged in conformity with the laws of the state
in which the deed is executed may be admitted to record in the
county where the land is situated, and after being so recorded may
be used in evidence without further proof of the execution thereof.
The court below overruled the objection and allowed the deed to be
read.
MR. JUSTICE NELSON delivered the opinion of the Court.
The principal question is whether there is anything in the Act
of February 21, 1861, indicating an intention on the part of the
legislature to change the course of decision which the courts of
Illinois had made on the subject of a tax deed made without
evidence of a preceding judgment and to give validity and effect to
the naked deed of the officer?
The argument in favor of the construction of the statute which
the plaintiff in error would establish is placed upon the
introductory words of the act: "All deeds hereafter made by the
proper officer in pursuance of sales of real estate for the
nonpayment of taxes shall be held," &c. It is contended that
the words should be construed as meaning
Page 77 U. S. 30
simply the deed of the "proper officer," and nothing more, and
that they impliedly, at least, exclude the necessity of giving any
evidence of the judgment, order of sale, or precept. But we are
inclined to think that this idea fails to give full effect to the
language used. The deed must not only be made by the proper
officer, but must be made "in pursuance of sales of real estate for
the nonpayment of taxes." How are those sales made according to the
law of Illinois? As we have seen, after a judgment rendered by the
court against the parcel of land for default in payment of the
taxes, on order of sale, and precept to the officer. Unless these
steps have first been taken, the sale cannot be said to be in
pursuance of sales of real estate for the nonpayment of taxes, as
provided in the act. It is perhaps not inappropriate to look at the
consequences that might attend any different interpretation. If the
naked deed of the officer is sufficient to impose the condition
upon the owner to pay all taxes and costs and ten percent interest
before he can be permitted to attack the deed for any irregularity
except as specified in the act itself, then a deed without a
judgment or order of sale (as these are not within the exception)
would be just as available for the purpose as if founded on a
judgment and order of sale. It is not necessary to stop to point
out the abuses to which such an interpretation would naturally
lead.
In the case of
Spelman v. Curtenius, [
Footnote 3] the court observed
"that 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 deed, else it would be
conclusive of those facts of which the statute expressly declares
it shall be
prima facie evidence merely."
The opinion then points out many grounds and objections that
would overthrow this
prima facie evidence and defeat the
title. And we think it is this
prima facie title, thus
explained, which is fairly embraced in the introductory language of
the act of 1861.
Page 77 U. S. 31
In the ordinary case of a title to land set up by virtue of a
sale under a judgment and execution, the party is bound to give
evidence of the judgment and execution to support this title.
Without these, the sheriff's or marshal's deed would be a nullity.
And it would be singular, in these tax sales, so stringently
scrutinized by the courts and every prerequisite prescribed by the
legislature before a sale rigidly enforced, if the act in question
was intended to dispense with the necessity of producing the
judgment and precept as the foundation of the sale and of the
validity of the deed. For these reasons, we are inclined to think
that the construction of the statute by the court below was right,
and should be affirmed.
We regret that this statute has not come under the review of the
courts of the state, as we should have been relieved from this
examination of it. But, after a diligent search into the reports of
their decisions, we have not been able to find any case involving
its construction except one which holds that the act is not
retrospective. [
Footnote 4]
A minor objection below was to the admission of one of the
patents, on the ground of an erasure. The court left the question
to the jury, which was quite as favorable a ruling as the defendant
could ask. In the absence of any proof on the subject, the
presumption is that the correction was made before the execution of
the deed. In a recent case in the Queen's Bench, Lord Campbell,
Chief Justice, in delivering the opinion of the court, after
referring to the note in Hargreve & Butler's Coke Littleton,
225
b, where this rule was asserted, observed:
"This doctrine seems to us to rest on principle. A deed cannot
be altered after it is executed without a fraud or wrong, and the
presumption is against fraud or wrong. [
Footnote 5]"
The cases are not uniform in this country, but the most
stringent leave the question to the jury. [
Footnote 6]
Page 77 U. S. 32
Another objection was to the admission of the deed in evidence
from Hood to Herndon which was executed and acknowledged in the
State of Virginia. But it appears that the acknowledgment was taken
in conformity with the laws of Virginia at the time the deed was
executed, which, according to the laws of Illinois, was sufficient
to admit it to be there recorded and to be given in evidence.
[
Footnote 7]
Judgment affirmed.
[
Footnote 1]
Spelman v. Curtenius, 12 Ill. 409;
Marsh v.
Chestnut, 14
id. 224;
Charles v. Waugh, 35
id. 317.
[
Footnote 2]
Session Laws, 1847, p. 47, § 3;
Secrist v.
Green, 3 Wall. 750.
[
Footnote 3]
12 Ill. 411.
[
Footnote 4]
Conway v. Cable, 37 Ill. 90.
[
Footnote 5]
Doe v. Catomore, 16 Adolphus & Ellis' New Series
745.
[
Footnote 6]
Lewis v. Payn, 8 Cowen 76;
Jackson v. Jacoby,
9
id. 126;
Hatch v. Hatch, 9 Mass. 312.
[
Footnote 7]
Secrist v.
Green, 3 Wall. 744;
Carpenter
v. Dexter, 8 Wall. 513.
MR. JUSTICE MILLER, dissenting.
I dissent from the opinion of the Court in this case on the
construction of the statute of Illinois of February 21, 1861.
That act mentions certain facts which may be shown without any
condition precedent in order to establish the invalidity of a tax
deed. These are 1. that the tax had been paid before sale; 2. that
the land was not subject to taxation; 3. that it had been redeemed
from the tax sale; 4. that the notice required by the constitution
had not been given; 5. that the description of the land was not
sufficiently definite.
It then provides that a tax deed made after the passage of that
act shall not be questioned in any suit for any other cause unless
the party wishing to contest the same shall tender to the claimant
under the tax deed or deposit in the court in which the suit is
pending, for his use, the amount of redemption money required by
law to redeem and ten percent per annum interest.
The defendant in this case offered his tax deed, and required of
the court to have the amount which he showed by the deed and tax
receipts paid or deposited before the plaintiff should be permitted
to question it. The court refused to receive the tax deed in
evidence, and permitted the plaintiff to contest it and exclude it
from the jury on the ground that no judgment was produced by
defendant under which the tax sale was made. The absence of such a
judgment is not one of the grounds mentioned for which a deed may
be
Page 77 U. S. 33
contested without paying the redemption money as a condition
precedent. The decision of the court makes that part of the statute
requiring the payment as a condition precedent to contesting the
deed a nullity. The policy of the act is clear, and it is wise. It
has been a
desideratum for years to provide a law which
would secure payment of taxes on real estate and at the same time
give the owner of the property, who may not have been prompt, some
reasonable opportunity to save it. This law is happily conceived.
It says in effect if no valid tax was levied, or if it has been
paid, or no notice was given of proceedings for sale, the deed is
void, and this may be shown at any time without condition. But if
there has been a valid levy of a tax and a sale, and the tax has
never been paid, either before or after sale, the party who should
have paid this tax and has neglected to do so must pay it now
before he can contest the deed made by the proper officer on such
sale. This is fair, it is just, and would tend to procure bidders
at tax sales and to admit of redemption on just terms. As there is
no decision of the state court of Illinois directly on this point
under this statute, I regret the construction that this Court has
placed upon it.
