Brickey v. English

Illinois Supreme Court

Brickey v. English

22 N.E. 854, 129 Ill. 646

CourtIllinois Supreme Court

DecidedOctober 31, 1889

StatusPublished

Cited by5 cases

This text of 22 N.E. 854 (Brickey v. English) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brickey v. English, 22 N.E. 854, 129 Ill. 646 (Ill. 1889).

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Opinion

Mr. Justice Wilkin

delivered the opinion of the Court:

This is an action of ejectment, by plaintiff in error, against defendants in error, to recover certain lands in Monroe county, this State, described in the declaration as “commencing at the south-east corner of survey 743, claim 93; thence along easterly line, ” etc., giving metes and bounds, and concluding, “containing 31^^ acres, more or less, and situated in survey 743, claim 93.” Defendants Hardy and Demint filed a plea of not guilty. English was defaulted. The case was tried by the court without the intervention of a jury, and judgment rendered in favor of defendants. Plaintiff sues out this writ of error.

The only evidence offered by plaintiff to prove title in himself, was a tax deed, and the judgment, certificate of purchase and affidavit for deed on which it was based, in each of which the description is as follows: “Part of survey No. 743, claim No. 93; 31t3^ acres.” The part of survey No. 743 is in no manner designated, and the deed is therefore void for uncertainty. The People v. Chicago and Alton Railroad Co. 96 Ill. 369; Lancey v. Brock, 110 id. 610.

The proceeding under which the deed was obtained was for the same reason also void. The People v. Reat, 107 Ill. 581 ; Pickering v. Lomax et al. 120 id. 297.

The affidavit on which the deed issued was fatally defective for other reasons, especially in that it failed to state the facts relied on as showing service of notice on the occupants of the lands purchased. The language of the affidavit is, “that this affiant served, or caused to be served, written or printed, or partly written and partly printed, notices of purchase at said tax sale, upon Thomas, Patrick and William Hayden and Frank English, the only persons in actual possession or occupancy of said piece or parcel of land or lot.” Here is uncertainty in every essential. Who served the notice, how it was served, (whether written or printed or partly written and partly printed,) as well as when it was served, are facts upon which the affidavit furnishes no light whatever; and they are facts which, by section 217, chapter 120, of the Bevised Statutes, must be particularly stated. Price v. England, 109 Ill. 394; Davis v. Gossnell et al. 113 id. 121; Wallahan et al. v. Ingersoll, 117 id. 123; Gage et al. v. Reid et al. 118 id. 35.

The judgment of the circuit court is affirmed. The cost of additional abstract by defendants in error should be taxed to plaintiff in error.

Judgment affirmed.

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Mr. Justice Wilkin

delivered the opinion of the Court:

This is an action of ejectment, by plaintiff in error, against defendants in error, to recover certain lands in Monroe county, this State, described in the declaration as “commencing at the south-east corner of survey 743, claim 93; thence along easterly line, ” etc., giving metes and bounds, and concluding, “containing 31^^ acres, more or less, and situated in survey 743, claim 93.” Defendants Hardy and Demint filed a plea of not guilty. English was defaulted. The case was tried by the court without the intervention of a jury, and judgment rendered in favor of defendants. Plaintiff sues out this writ of error.

The only evidence offered by plaintiff to prove title in himself, was a tax deed, and the judgment, certificate of purchase and affidavit for deed on which it was based, in each of which the description is as follows: “Part of survey No. 743, claim No. 93; 31t3^ acres.” The part of survey No. 743 is in no manner designated, and the deed is therefore void for uncertainty. The People v. Chicago and Alton Railroad Co. 96 Ill. 369; Lancey v. Brock, 110 id. 610.

The proceeding under which the deed was obtained was for the same reason also void. The People v. Reat, 107 Ill. 581 ; Pickering v. Lomax et al. 120 id. 297.

The affidavit on which the deed issued was fatally defective for other reasons, especially in that it failed to state the facts relied on as showing service of notice on the occupants of the lands purchased. The language of the affidavit is, “that this affiant served, or caused to be served, written or printed, or partly written and partly printed, notices of purchase at said tax sale, upon Thomas, Patrick and William Hayden and Frank English, the only persons in actual possession or occupancy of said piece or parcel of land or lot.” Here is uncertainty in every essential. Who served the notice, how it was served, (whether written or printed or partly written and partly printed,) as well as when it was served, are facts upon which the affidavit furnishes no light whatever; and they are facts which, by section 217, chapter 120, of the Bevised Statutes, must be particularly stated. Price v. England, 109 Ill. 394; Davis v. Gossnell et al. 113 id. 121; Wallahan et al. v. Ingersoll, 117 id. 123; Gage et al. v. Reid et al. 118 id. 35.

The judgment of the circuit court is affirmed. The cost of additional abstract by defendants in error should be taxed to plaintiff in error.

Judgment affirmed.

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22 N.E. 854, 129 Ill. 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brickey-v-english-ill-1889.

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