Glos v. Collins

Mr. Justice Ball delivered the opinion of the court. It is conceded that in Foss v. City of Chicago, 184 Ill. 436, the Supreme Court reversed the judgment of confirmation entered by the County Court in the-special assessment proceeding for the improvement of Clifton Park avenue; that the order of reversal was filed in the County Court May 7, 1900; that notwithstanding such order the city afterward caused the premises described in the bill of complaint to be sold for the third installment of said assessment, at which sale appellant Glos became the purchaser. The County Court had no power to order a sale of the property in question after the judgment of confirmation had been reversed. Such act was without the jurisdiction of the court. It conferred no rights upon the party who purchased at the sale. All steps taken under an invalid ordinance are void. Culver v. People, 161 Ill. 100; Pells v. City of Paxton, 176 Ill. 318. The filing of the order of reversal in the County Court relieved the owners of the property included in such assessment from any further attendance upon that court in that, cause. They were not bound to watch lest the court, in their absence, proceed irregularly and illegally. Hor would the fact that appellee made no objection to such after proceedings bar him from attacking them by bill in chancery, since the lack of jurisdiction in the County Court brings his lots within the exception contained in section 224, Chap. 120, R. S., “ that the real estate was not liable to the tax or assessment.” (Drake v. Ogden, 128 Ill. 603; Gage v. Goudy, 141 Ill. 215.) Lands áre subject to the burden of legal taxes, but not to the burden of illegal taxes. These premises not being liable for the assessment as levied, appellee was not barred by the judgment for sale from setting up the illegality of that assessment in this case. That a void judgment can be attacked collaterally is hornbook law. Steenberg v. People, 164 Ill. 478. Appellee in his bill avers that he is the owner and in the possession of the premises described. This allegation is essential to the maintenance of his bill. Appellant Glos did not admit the truth of this allegation, but put appellee upon proof of the same. The latter put in evidence the deed under which he claimed title, but did not prove that he was in possession of the premises, or that the same were vacant. Lacking the support of sufficient testimony, the bill must fail. Hewes v. Glos, 170 Ill. 438; Glos v. Goodrich, 175 Ill. 22. It appears that appellant Glos after he purchased these lots at the tax sale paid other special assessments, presumably valid, upon two of such lots, in the sum of §101.78. This sum the learned chancellor properly ordered to be repaid to appellant. Sec. 224, Ch. 120, R. S. Appellee did not bring or offer to bring into court the amount of money paid by appellant upon other assessments levied upon two of these lots, nor did he in his bill of complaint offer to pay any sum that might be found due from him. A decree for costs against one holding a tax certificate or a tax deed can not be entered until after he has been placed in the position of refusing to do equity. Hence that part of the decree which directs appellant to pay one-half the costs in the court below is erroneous. Glos v. Goodrich, 175 Ill. 22, and cases cited. There was no ordinance upon which the decree of sale; for the non-payment of these assessments could be based. It follows that there was no liability upon the part of appellee to pay such assessments. Appellant G-los when he purchased at the sale took the chance that the owner was not delinquent and that the lots were not legally assessed. To compel appellee to pay assessments which he never owed and for which his lots were never liable, before the court will grant him relief, is an injustice which a court of equity will not perpetrate. Wilmerton v. Phillips, 103 Ill. 78. The decree of the Superior Court will be reversed and the cause remanded.