Anderson v. Gray

Mr. Justice Wilkin delivered the opinion of the Court: This was an action of ejectment, by appellee, against appellant, to the April term, 1882, of the Johnson circuit court, to recover possession of the south half of the north-west quarter óf section 15, township 12, range 3 east, in said county. Three judgments have been rendered,—the first in favor of plaintiff, and the second in favor of defendant, each taking a new trial under the statute. At the April term, 1889, the present judgment was rendered in favor of plaintiff, and defendant appeals. Both parties proved title in one Owen G. Peterson. Plaintiff claims title from him through a sheriff’s sale to George W. Hacker, and deed from said Hacker to himself. To sustain the sheriff’s sale he offered in evidence, first, the- record of a judgment in the county court of said Johnson county, rendered at the June term, 1873, the title of the case, as shown by the record, being, “Jane Mercer, for the use'of G. W. Hacker, vs. B. M. Humble and Owen G. Peterson, Def’ts.” The judgment was by default, against Owen G. Peterson alone, for $18.64 damages and $84.80 debt, total amount $103.44, and costs. It is recited in that judgment that the cause is to “stand continued until the next term of this court as to B. M. Humble, one of the defendants, service not being had in time for the present term of this court.” He next offered a record of a judgment of the same court, rendered at the July term, 1873, the title of the case being, James Mercer, for the use of G. W. Hacker, against the same defendants.—Debt. This judgment is against E. M. Humble, for the same amount of damages and debt named in the former judgment. He then offered a certificate of purchase for the lands in suit, to said G. W. Hacker, by the sheriff of said county, in which it is stated that the sale was made by virtue of an execution in favor of James Mercer, for the use of George W. Hacker, and against E. M. Humble and Owen G. Peterson, for $129.15, debt and interest and costs. Also, a sheriff’s deed dated March 15, 1875, to said Hacker, which recites: “Whereas, James Mercer, for the use of George W. Hacker, did, at the July term, 1873, of the county court of the county of Johnson, recover a judgment against E. W. Humble and Owen G. Peterson for the sum of $103.45 and costs of suit, upon which judgment an execution was issued,” etc., reciting levy and sale thereunder. The amended bill of exceptions shows that he also offered in evidence a deed from said Hacker to himself. Neither of the records of said judgments in the county court shows affirmatively that the court had jurisdiction of the persons of the defendants when the judgments were rendered, and it is insisted on behalf of appellant that for that reason the judgments are void. County courts in this State, in the exercise of the common law jurisdiction conferred upon them by statute, are entitled to the same presumption in favor of their jurisdiction as circuit courts. They are courts of record. The practice in them is the same as in the circuit courts. They have the same power to pass upon their own jurisdiction, and to exercise it, without setting forth in their proceedings the facts upon which they determine that jurisdiction. . These characteristics distinguish them from courts of inferior, limited jurisdiction, in which jurisdiction in every case must affirmatively appear. (Guynon et al. v. Astor et al. 2 How. 125 ; Fox v. Hoyt, 12 Conn. 491; 31 Am. Dec. 763; Freeman on Judgments, sec. 122; 4 Am. and Eng. Ency. of Law, p. 453, and oases cited.) The judgments are not void for want of jurisdiction of the person. The original papers, including the execution on which the sale was made, were shown upon the trial to have been lost. Manifestly., the execution, as shown by the certificate of purchase and sheriff’s deed, did not correctly describe either of the judgments offered in evidence, and appellant insists that the variance is fatal. Freeman, in his work on Executions, (sec. 43,) says: “There is a great distinction between executions issued without authority and executions issued under an authority which is erroneously pursued. * * * The former class is void; the latter may be termed irregular or erroneous. It is necessary that an execution have a judgment to support it, and it should appear from the execution what judgment is intended to be enforced. * *' * When the execution is offered in evidence it may vary from the judgment in some respects and correspond with it in others. The question then before the court, is, did this execution issue on this judgment? If, from the whole writ, taken in connection with other facts, the court feels assured that the execution offered in evidence was intended, issued and enforced as an execution upon the judgment shown to the court, then we apprehend that the writ ought to be received and respected.” Phillips et al. v. Coffee, 17 Ill. 157; Hayes v. Bernard, 38 id. 297. That there was great irregularity in the proceedings under which the judgments offered in evidence were rendered must be admitted. The evidence clearly shows that there was, in fact, but one suit for the use of George W. Hacker against Peterson and Humble, in that court, on which these two judgments were obtained. The witnesses all speak of the lost papers as “in the case of Jane Mercer, for the use of George W. Hacker, vs. O. G. Peterson and E. M. Humble.” It is not pretended that there was such a suit as “James Mercer, for the use,” etc., pending at the July term of said court. No such papers were lost. It is clear, therefore, that in the suit of Jane Mercer to the June term, both these judgments were entered ; that service on Humble not being in time for that term, the plaintiff erroneously took judgment against Peterson, and continued the case as to Humble to the next term, when judgment was entered against him for the same damages and debt, the attempt being, in that way, to make him a party to the judgment. Notwithstanding the manifest error in entering these judgments, the one against Peterson was not void, and we entertain no doubt, from all the facts in evidence, that the execution under which the sale was made was intended to enforce that judgment. We are therefore of the opinion that by the sheriff’s deed to Hacker, Peterson was divested of his title to the premises in question. It is also shown by the plaintiff below, and not denied by the defendant, that when plaintiff got his deed from Hacker, Peterson was not occupying the premises, though he had previously done so. Plaintiff took possession under his deed, and occupied the premises, by his tenants, for some two years, when the defendant wend upon the same and forcibly took possession. So far as the record discloses, he then had no title whatever to the lands. Plaintiff’s deed from Hacker was sufficient to protect his possession against a trespasser without title, regardless of the validity of the sheriff’s sale to Hacker. (Barger v, Hobbs, 67 Ill. 592.) Being, at the time he took possession, a trespasser without title, appellant could not set up an outstanding title in another. (Jackson v. Harder, 4 Johns. 203.) This rule is recognized in Hardin v. Forsythe, 99 Ill. 312. Something is said about his having entered under claim of a tax title. There is not the slightest proof of such a title, or even a pretense that the land had at any time been sold for taxes. He does not himself claim that he had title when he took down the fence, drove over the occupant’s growing crops, and forced the house open, in which he put his tenant. It appears that in 1884, long after this suit was brought and after it had been once tried, Peterson, then in Texas, executed to appellant a quitclaim deed. There is no evidence whatever that prior to that time, Peterson, directly or indirectly, set up any claim to these lands, or made any objections to the proceedings under which they were sold. Appellant now seeks to justify his possession under that deed. The court below ■very properly held that he could not do so. The judgment of the circuit court will be affirmed. Judgment affirmed.