Sheldon v. Van Vleck

Mr. Justice Scott delivered the opinion of the Court: Both parties claim the title to the land involved in this litigation that was in Otho Hays. Through mesne conveyances the title that was in him came to defendants, and is the paramount title, unless it has been cut off by sales under two fee-bills that came to the hands of the sheriff making the sales, from the circuit court, by which he was commanded to sell the property of Otho Hays in satisfaction of such fee-bills. After the fee-bills came to the hands of the sheriff, he caused both of them to be levied on the tract of land in controversy, and on the 30th day of November, 1867, by virtue of such-levies, he sold the property on each fee-bill, separately, to J. H. Woodmansee, and issued to him two separate certificates of purchase. It seems the purchaser afterwards assigned his certificates to plaintiff, and the property not having been redeemed from either sale, the sheriff made plaintiff a deed for the land. It is that title plaintiff insists is the paramount title, and should prevail. It is clear the fee-bill issued in the case of Hays v. Kelley is void, under the decisions of this court in Neal v. Blanchard, 32 Ill. 503, and Eads v. Couse, 35 id. 534. It was issued for the costs of both plaintiff and defendant in that case. The clerk had no authority to issue a fee-bill for the collection from Hays of the costs made by Kelley. There was final judgment for costs in favor of Kelley, and in such cases execution is the proper and only process by which a judgment for costs can be collected. On inspection, it is seen the fee-bill in the case of Hays v. Kelley is void on its face. Being void, there could be no sale of the property under it, and in the further consideration of the case it will be treated as though there had been but one sale of the property, and that under the fee-bill in Hays v. Rittenhouse. Is the fee-bill in that case void ? Nothing appears on the face of it to show that it is. It does not appear it is for anything but for the collection of the costs made by plaintiff in that suit, and the rule is well settled a fee-bill may issue against a party to collect costs due from him to the officers rendering the services. It is said the clerk has not indicated by anything on the face of the fee-bill it is for nothing other than for the collection of costs owing by the party against whom it is issued, to the officers. That is so; but it does appear, on inspection of the writ itself, only costs made by plaintiff are included in the fee-bill issued against him. There are no costs included for the appearance of defendant, or otherwise made by him. The mere omission of the clerk to state on the fee-bill it only contains the costs of the party against whom it is issued) does not render it invalid, when it distinctly appears on the face of the writ no other costs are included. Could resort be had to extrinsic evidence given, or offered to be given, and objected to by defendants, it would appear there was no appearance by Kelley, or any one for him, and consequently no costs made by him. But disregarding all extrinsic evidence, as, perhaps, ought to be done, it does not appear on the face of the fee-bill, or otherwise, that it is void. It appears only to contain costs owing to the officers by the party against whom it is issued, and that is allowable. That being so, it was valid process, upon which the property might lawfully be sold, as was done. Another point made against the validity of plaintiff’s bill is, that the fee-bill in Hays v. Rittenhouse, on which the property was in fact sold, was not issued until after the lapse of more than one year from the last day of the term of court at which the suit was dismissed at plaintiff’s costs, and as it does not appear that any other process had ever been issued for the collection of such costs, it is said the writ was no lien upon the property in the hands of a subsequent purchaser. The act of 1859, which has been in force from that date until the present time, provides, the clerk, on proper application, may, at any time within eleven years after the accruing of the right to issue the same, issue a fee-bill, which shall have the same force and effect as if issued within the year next succeeding. (Rev. Stat. 1874, p. 265.) The fee-bill in this case was issued on the 13th day of September, 1867, and came to the hands of the sheriff on the same day, and the property was not conveyed by the party owing the costs until December 1, 1871, so that when the fee-bill was levied on the land, and it was sold by the sheriff, it was still the property of the party owing the costs, and was subject to sale in satisfaction of the same. No unreasonable time was permitted to elapse after the sheriff’s sale before taking out the deed by the assignee of the purchaser, and the point made against it on that account is untenable. The judgment of the circuit court will be reversed, and the cause remanded. Judgment reversed.