Elmwood Cemetery Co. v. People

68 N.E. 500, 204 Ill. 468, 1903 Ill. LEXIS 2573

• Court: Illinois Supreme Court
• Decided: October 26, 1903
• Status: Published

Opinion

Mr. Justice Magruder

delivered the opinion of the court:

This action of debt is brought under section 230 of the Eevenue law, which provides as follows: “The county board may, at any time, institute suit in an action of debt in the name of the People of the State of Illinois in any court of competent jurisdiction for the whole amount due on forfeited property; or any county, city, town, school district or other municipal corporation, to which any such tax may be due, may, at any time, institute suit in an action of debt in its own name, before any court of competent jurisdiction, for the amount of such tax due any such corporation on forfeited property, and prosecute the same to final judgment. * * * And in any such suit or trial for forfeited taxes, the fact that real estate or personal property is assessed to a person, firm or corporation, shall be prima facie evidence that such person, firm or corporation was the owner thereof, and liable for the taxes for the year or years for which the assessment was made, and such fact may be proved by the introduction in evidence of the proper assessment book or roll, or other competent proof.” (Hurd’s Stat. .1899, p. 1433).

First—It is first claimed by the appellant, that the evidence, produced in behalf of the appellee, is insufficient to sustain the judgment of the court. The principal point, made under this general objection, is that, while the documentary proof, introduced by the appellee, tends to show a substantial compliance with some of the requirements essential to establish á forfeiture for unpaid taxes, it does not contain any evidence, showing that the land in question was ever offered for sale for the unpaid taxes of 1897, or for the unpaid taxes of 1898, and that the same was not sold for want of bidders. “To create a forfeiture there must have been a judgment, a process in substantial conformity with the requirements of the statute authorizing the sale of the property, an offer of the property for sale, and a failure to sell for want of bidders.” (People v. Henckler, 137 Ill. 580, and cases cited).

It is true that no affirmative evidence was introduced by the appellee upon the trial below, showing an offer of the property for sale and á failure to sell for want of bidders. But the amended declaration in the case alleges that the land in question was forfeited to the State for the taxes of the years 1897 and 1898, and the tax judgment, sale, forfeiture and redemption record was introduced in evidence by the appellee, and showed that the lands in question were forfeited for the years 1897 and 1898 at the regular tax sales. This evidence was not contradicted by the appellant, nor rebutted in any way. The collector’s tax warrant, together with the tax judgment, salé, forfeiture and redemption record, unrebutted, was sufficient evidence of the assessment and levy of the-taxes, the amount of the same, the years in which'they were assessed and levied, and that the taxes were due and unpaid, and that the lands in question were forfeited to the State as therein shown. (Carrington v. People, 195 Ill. 484; Cage v. Parker, 103 id. 528; Mix v. People, 86 id. 312; Durham v. People, 67 id. 414; Chiniquy v. People, 78 id. 570). In Carrington v. People, supra, we have recently held that, in an action of debt to recover taxes, costs and penalties due on property which has been forfeited to the State for want of bidders at the tax sale, a prima facie case is made by introducing in evidence a certified copy of the tax judgment, sale, redemption and forfeiture record, together with proof that the defendants were the owners of the property in the years, for which the unpaid taxes were levied. The documentary records, introduced in evidence by the appellee upon the trial below, show a forfeiture, and, until the contrary is proven, it will be presumed that the antecedent steps, which precede the forfeiture, were taken in accordance with the requirements of the statute. That is to say, it being established that there was a forfeiture, it will be presumed that there was an offer of the property for sale and a failure to sell for want of bidders. It was admitted upon the trial that appellant was the owner of the property on the first days of May and the first days of April, 1897 and 1898, and that it still owped the land at the time of the trial. Therefore, all the requirements to establish a prima facie case for the purpose of showing, that the property had been forfeited to the State, were established by the evidence. Appellant introduced no evidence to overthrow the prima facie case thus made, nor did it introduce any evidence to show' that the property in question was used for burial purposes in the years 1897 and 1898.

Second—But, upon the trial below, the appellant introduced certain proceedings, which took place in the county court of Cook county in July, 1900, wherein, on July 20, 1900, that court, upon the application of the county collector for judgment of sale for the general taxes of the year 1899 and prior years, sustained objections to the effect that the premises in question, at the time of levying the taxes for the years 1897 and 1898, as well as 1899, were used exclusively as graveyards and grounds for burying the dead, and, on that account, were exempt from taxation; and, in sustaining" such objections, refused the application of the collector for judgment as to the property in controversy. The exemption of the land on account of its use for burial purposes was the question at issue under the objections in the proceeding in July, 1900. The parties to that proceeding were the same as the parties to the present proceeding, and, the question being the same, we see no reason why the judgment, rendered on July 20, 1900, is not conclusive upon the same parties in this proceeding-.

In Graceland Cemetery Co. v. People, 92 Ill. 619, an application was made to the county court for judgment for taxes, and, among the objections filed why the application for judgment should be denied, was a claim on the part of appellant that the lands in question were, under the provisions of the company’s charter, exempt from taxation. This in that case was the main question upon the hearing—indeed, the only one to which the evidence was directed or relied upon in the argument; and we held in that case that the determination of the county court, upon an application for an order for the sale of land for taxes due thereon, was a judgment, whether the. same was adverse or in favor of the party resisting the same, and that such judgment was conclusive upon the parties, where the court had jurisdiction, until-it was reversed or set aside by some legal proceeding instituted for that purpose. It was also held in Graceland Cemetery Co. v. People, supra, that the judgment of the county court, holding that lands are not liable to taxation for certain years, on application for judgment against the same, is a conclusive bar until reversed, .as against a second application for judgment fbr the taxes of the same year.

It cannot be said that there was any want of jurisdiction in the county court, which rendered the judgment of July 20, 1900, sustaining the objection that the property was exempt from taxation. If that judgment was erroneous, the present appellee should have taken proceedings to reverse the same. In this collateral proceeding it is conclusive upon the parties. Th'e proceeding of July, 1900, as it is presented in the present record, involved a trial upon the' merits, and the court had jurisdiction of the persons and of the subject matter of the suit. We are unable to see why the doctrine of the case of Graceland Cemetery Co. v. People, supra, is not applicable to the case at bar. (See also Riverside Co. v. Howell, 113 Ill. 256; Belleville Nail Co. v. People, 98 id. 399; Gage v. Bailey, 102 id. 11; Stamposki v. Stanley, 109 id. 210). The judgment of the county court, acting within its jurisdiction, cannot be collaterally attacked. (Hammond v. People, 169 Ill. 545; Riebling v. People, 145 id. 120). It cannot be here contended that the county court, in rendering the judgment sustaining the objections in question, in July, 1900, could not consider the question, whether the judgments for taxes entered in 1897 and 1898 were valid, or not. The appellant was not estopped, in the proceedings of July, 1900, from raising the question, that the land was exempt as burying land, on account of the judgment entered against the land in the year 1899, for the reason that that judgment was entered by default, and it has been held by this court that a judgment against land by default for delinquent taxes is not conclusive against the owner, as to the legality of all the taxes included in the judgment, and he may show that a part of the tax is illegal, and thus defeat the sale in a collateral proceeding, as, in ejectment to recover under a tax deed; and that such judgment is to be distinguished from a judgment affirming a special assessment, which is conclusive upon the land owner. (Riverside Co. v. Howell, 113 Ill. 256, and cases there referred to; Gage v. Goudy, 141 id. 215).

There is another reason why the appellant was not estopped from raising the question here under consideration in the application for judgment in July, 1900, and that is, that the real estate, against which judgment was applied for in that case, was not liable to the tax sought to be enforced against it. It is contended that, under the amendment to the Revenue law passed in 1879, as contained in section 224 thereof, the judgment of the county-court, whether rendered with or without the appearance of the land owner, should be held conclusive of this or any other objection to the entry of judgment, which might have been interposed before the judgment was entered. But in Gage v. Goudy, supra, we said in answer to this contention (p. 224): “We have frequently held, both before and since the passage of said amendment, that, where a judgment for taxes includes either illegal taxes or illegal costs, and the land owner does not appear and contest the entry of judgment, these objections may be raised by way óf a collateral attack upon the title to lands claimed through a sale under such judgment, and that the judgment is in such case no estoppel. And this is the settled doctrine of this court. (Referring to cases). The theory upon which cases of this character have proceeded since the adoption of said amendment is, that they come within the exception made by the amendment, viz., cases where ‘the real estate was not liable to the tax or assessment.”’ Said section 224 (Laws of Ill. of 1879, p. 253) provides that “any judgment for the sale of real estate for delinquent taxes rendered after the passage of this act * * * shall estop all parties from raising any objections thereto or to "a tax title based thereon, which existed at or before the rendition of such judgment, and could have been presented as a defense to the application for such judgment in thé court wherein the same was rendered, and, as to all such questions, the judgment itself shall be conclusive evidence, of its regularity and validity in all collateral proceedings, except in cases where the tax or special assessments have been paid, or the real estate was not liable to the tax or assessment.” (Carrington v. People, supra).

The case at bar comes within the exception specified in the amendment, because the objection, that the land here in controversy was exempt because of its use as a burying ground, is tantamount to the objection that it was not liable to the tax sought to be imposed upon it. The constitution of 1870 (sec. 3, art. 9) provides that “such other property as may be used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes, may be exempted from taxation; but such exemption shall be only by general law.” In pursuance of this constitutional provision the legislature passed a revenue law, the second section of which provides that “all property, described in this section to the extent herein limited, shall be exempt from taxation, that is to say: * * * Third, all lands used exclusively as graveyards or grounds for burying the dead.” (Hurd’s Stat. 1899, p. 1393).

In view of the fact, that the objection here under consideration comes within the exception mentioned in the amendment of 1879 to the Revenue law, such cases as People v. Smith, 94 Ill. 226, and Biggins v. People, 106 id. 270, cannot be held to apply. The objection, here made to the effect that the land was exempt from taxation altogether, cannot be regarded as a mere irregularity, so far as the former judgments rendered in 1897 and 1898 are concerned. In regard to such judgments it cannot be said that, in rendering the same, there was a failure to observe a mere formality, such as is mentioned in the two cases last referred to.

While we are inclined to hold that the first objection, made by appellant to the effect that the evidence produced by appellee is insufficient to sustain the judgment below, is not well taken, we are yet of the opinion that the second objection as to the conclusiveness of the judgment of the county court rendered in July, 1900, is well taken.

Therefore, the judgment of the circuit court is reversed, and the cause is remanded to that court for.further proceedings in accordance with the views herein expressed.

Reversed and remanded.