Langlois v. People

Mr. Justice MagrudER delivered the opinion of the court: The original and amended bills in this case were filed under and in pursuance of section 253 of the Revenue act. (3 Starr & Curt. Ann. Stat.—2d ed.—p. 3507). That section, after providing that the taxes upon real property, together with all penalties, interest and costs that may accrue thereon, shall be a prior and first lien upon such property superior to all other liens and encumbrances from and including the first day of May of each year in which the taxes are levied until the same are paid, further provides that such “lien may be foreclosed in equity in any court of competent jurisdiction, in the name of the People of the State of Illinois, whenever taxes for two or more years, upon the same description of property, shall have been forfeited to the State, and may be sold under the order of the court by the person having authority to receive State and county taxes, with the same notice to interested parties and right of redemption from said sale as is now provided by law, and in conformity with sections 4 and 5 of article 9, of the constitution of this State.” Section 4 of article 9 of the constitution provides as follows: “The General Assembly shall provide, in all cases where it may be necessary to sell real estate for the non-payment of taxes or special assessments for State, county, municipal or other purposes, that a return of such unpaid taxes or assessments shall be made to some general officer of the county, having authority to receive State and county taxes; and there shall be no sale of said property for any of said taxes or assessments but by said officer, upon the order or judgment of some court of record.” Section 5 of article 9 provides that the right of redemption from all sales of real estate for the non-payment of taxes or special assessments shall exist in favor of the owners of such real estate for a period of not less than two years. (1 Starr & Curt. Ann. Stat.—2d ed.—p. 173). The prayer of the original and amended bills was that, in default of payment, the property should be sold by the county collector, the officer contemplated by section 253 of the Revenue act, and by sections 4 and 5 of article 9 of the constitution. The original and amended bills were strictly bills for the foreclosure of the lien, provided for in section 253 of the Revenue act, and were proceedings in rem against the land itself. The amended and supplemental bill, subsequently filed, proceeded upon a new and entirely different theory, and, in our opinion, was not germane to the original and amended bills. The supplemental bill set up the recovery of twenty-nine judgments for delinquent taxes against the owners of the property before a justice of the peace, and, after the issuance of executions thereon and the return of the same unsatisfied by a constable, the filing of transcripts in the circuit court, and the issuance of executions, and the levy of the same upon the real estate. The supplemental bill does not state how these levies were disposed of, or that they were disposed of at all. The theory of the supplemental bill is, that the appellant, who is the only one of the defendants below prosecuting this appeal, claimed a lien upon said premisés growing out of an invalid tax title thereto, and that his title and claim were subject to the demand, for which said judgments were rendered. The supplemental bill also averred that, by reason of appellant’s claim, the property was rendered unsalable by the sheriff; and the object of the bill was to remove the cloud, created by appellant’s tax title, in order that the sheriff might sell the land, levied upon under the executions issued upon the judgments already mentioned. The prayer of the supplemental bill was that the sale of the property should be made by the sheriff subject to the statutory right of redemption. It is clear that the supplemental bill was an entirely different bill from the original and amended bills. The judgments, rendered before the justice of the peace, were judgments in personam, and the object of the supplemental bill was to remove certain clouds or obstacles out of the way, so that the executions, levied under such judgments in personam,, could be enforced by the sheriff. . In Douthett v. Kettle, 104 Ill. 356, we held that sections 4 and 5 of article 9 of the constitution had no reference whatever to a sale of land upon an execution where a personal judgment had been rendered in an action brought to recover delinquent taxes. The procedure, provided in sections 4 and 5 of article 9 of the constitution, and in section 253 of the Revenue act, contemplates, not a personal judgment, but a judgment or decree in rem. Where the proceeding is to enforce a decree or judgment in rem, or against the land itself, the officer, authorized to sell the property, is the treasurer or ex officio county collector, and the time of redemption is a period of two years. But where a judgment is against the owner of land for delinquent taxes, which is a judgment in personam, the right of redemption is that fixed by the statute in case of ordinary sales under judgments, and the officer, who has authority to make the sale, is the sheriff of the county. In Douthett v. Kettle, supra, we said (p. 359) : “The right of redemption, provided for in section 5, was intended to embrace such sales as were mentioned in section 4, and none others, and as section 4 had no reference to a personal judgment, but only to a judgment against the land, or an ordinary proceeding to sell lands for the non-payment of taxes, it follows that section 5 could not have any bearing upon a sale of land upon an execution directed to a sheriff, although the judgment was rendered, in the action upon which the execution issued, for delinquent taxes. Again, the land in this case was not sold for the non-payment of taxes in the ordinary acceptation of that term. It was sold upon a judgment rendered after personal service of summons in .an action of debt. Whether the subject matter of the suit was taxes or a promissory note, can make no difference. The same rule, which would control the sale and redemption of the land in the one case, would govern in the other.” It follows from what has been said that the demurrer of the appellant to the amended and supplemental bill should have been sustained. The amended and supplemental bill was not germane to the original and amended bills, because it sought to remove out of the way an alleged obstruction to the enforcement of judgments in personam against the owners of the property, and prayed for a sale of the property by the sheriff, and for a deed to the purchaser after the expiration of the statutory period of fifteen months, while the original and amended bill sought to enforce a lien against the land itself, and contemplated a sale of the land by the county collector, and a redemption from the sale by the purchaser within a period of two years, instead of fifteen months. Not only was the relief prayed for by the original and amended bills different from that asked for by the amended" and supplemental bill, but the latter bill was defective in another respect. It merely alleged that, the tax title of the appellant was invalid, but did not state in what respect such tax deed was invalid. It is incumbent upon the complainant in a bill to remove a tax deed as a cloud upon title to allege and prove the invalidity of the tax deed. (Hyde v. Heath, 75 Ill. 381; Gage v. Curtis, 122 id. 520; Glos v. Carlin, 207 id. 192). The decree rendered in the case was based upon the allegations of the original and amended bills, and was in pursuance of the relief asked for in those bills. The cause went to hearing before the court upon the amended and supplemental bill. The original and amended bills had been abandoned by the appellee when the amended and supplemental bill was filed. The relief, granted by the decree, is the relief of foreclosure against the land, enforced by a sale to be made by the county collector, and the decree provided for a redemption of two years. Therefore, the relief, granted by the decree rendered, did not conform either to the allegations or the prayer of the amended and supplemental bill. “The rule is that the complainant must stand or fall by the case he makes in his bill. * * * And the decree must conform to the prayer of the bill.” (Gage v. Curtis, 122 Ill. 520). It is true that, in the case at bar, the amended and supplemental bill contains a prayer for 'general relief; but the relief to be granted under the general prayer must be such relief; as the complainant may be found entitled to have under the allegations of fact made in the bill, and the proof in support thereof. (Gibbs v. Davies, 168 Ill. 205). In Fuller v. Davis’ Sons, 184 Ill. 505, we said (p. 510) : “Manifestly, the decree of the circuit court cannot be sustained. It is clearly beyond the scope of the bill and the prayer for relief. Neither is it supported by the evidence. The only attempt to justify the finding and decree is under the general prayer. But a general prayer for relief will only sustain a decree when the facts alleged justify such decree. A decree can never rest upon the prayer alone, whether it be for specific or general relief.” We are of the opinion that the amended and supplemental bill was demurrable, and that the decree entered is erroneous, for the reason that it is beyond the scope of the amended and supplemental bill and the prayer of the latter bill for relief. Accordingly, the decree of the circuit court of Cook county is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. Reversed and remanded.