Slike stranica
PDF
ePub

Nashville Railroad by an alley, has a frontage on Thirty-First street of 31 feet, and was assessed $310.52. Each of the other lots has a frontage of 50 feet, and was assessed $500.86. The company owns additional land immediately east and southeast of the lots, and extending approximately 600 feet south from the right of way of the Louisville & Nashville Railroad to St. Clair avenue. The company's plant occupies about 11 acres. The lots, which form the west end of the company's property, are devoted to various uses. Large storage tanks for asphalt are located upon lots 1 and 2, a brick boiler house stands in part on lots 3, 4, and 5, and drums, scrap iron, brick, and cinders are stored upon the lots. A switch track runs from the railroad across Thirty-First street and over lot 2 into the company's plant. An iron fence about 7 feet high, with several gates, stands along the west or front line of the lots. There are also two entrances to the plant from St. Clair avenue on the south. The Stormcote Roofing Corporation owns lots 1, 2, 3, 4, the south half of lot 5, and lots 6 and 7, and Munger owns the north half of lot 5, all in block 1, in the same subdivision. These lots face east on Thirty-First street, are situated directly opposite lots of the same numbers, respectively, in block 2, and are also 120 feet deep. Lot 1, with a frontage of 31 feet, was assessed $340.52, while each of the other lots, with a frontage of 50 feet, was assessed $530.86. These lots are vacant and unimproved.

The surface of the lots on both sides of Thirty-First street is lower than the surface of the streets in the vicinity. The land is swampy, and, while some filling has been done, water stands on a portion of the lots west of Thirty-First street. There are five frame houses on the east and two brick houses on the west side of that street north of St. Clair avenue, and all these houses are occupied. Thirty-First street has a cinder roadway, and ends at the Louisville & Nashville Railroad right of way. The railroad is 8 or 9 feet above the present level of the street. St. Clair avenue has a 36-foot roadway, which is improved by a concrete pavement, and the street is one of the principal thoroughfares of the city. Proceeding north from the Louisville & Nashville Railroad a person crosses in succession the St. Louis & O'Fallon Railroad yards and the Caseyville road, and then enters Jones Park, a public recreation ground.

On the question of benefits, nine witnesses testified on behalf of appellants and six for the city. Four of appellants' witnesses expressed the opinion that none of the lots would be benefited by the construction of the improvement. One of these witnesses testified that, although he had not approached or set foot upon the lots for 15 years, yet he was familiar with them, because they could be seen from St. Clair avenue, over which he often traveled. Upon objection, the jury

were instructed to disregard his testimony. Another witness testified that the lots on the east side of Thirty-First street would receive no benefit, while those on the opposite side of the street would be benefited from $2 to $3 per front foot. Four witnesses testified that some benefit would result to all of the lots. One fixed the maximum at $1, another at $4, another at $5, and the last at $6 per front foot. The following reasons were given by appellants' witnesses for their opinions: That the surface of the lots west of Thirty-First street is below the level of the street, resulting in the inundation of the lots wholly or partially; that the lots are used as a dumping ground, and the filling, which is objectionable, will have to be removed before buildings can be erected on the ground; that, while the lots east are not as low as those west of Thirty-First street, yet they are below the level of the abutting street; that the lots are so near the plant of the American Asphalt Roof Corporation that they are, and persons occupying them will be, subjected to the effects of the gases and smoke emanating therefrom; that the lots are not suitable for residential purposes, because the neighborhood is industrial in character and a railroad is in close proximity; that the use of the lots by factories is restricted because the area available for industrial enterprises is limited; that Thirty-First street terminates at the railroad and serves no territory to the north; that property adjacent to a trunk line railroad, such as the Louisville & Nashville Railroad is at this point, is not as valuable for industrial purposes as if it were located upon a belt railroad; and that the existing dwellings establish the neighborhood as an inferior residential district.

Of the witnesses called by the city, one testified that the benefits per front foot which would be derived from the improvement were from $5 to $6 to lots on the west and from $6 to $7 to lots on the east side of Thirty-First street. Four witnesses expressed the opinion that all the lots would be benefited $10 per front foot, and one witness testified that the benefits would be from $10 to $11 per front foot to lots facing west and from $10 to $12 to lots facing east on Thirty-First street. The reasons given by the city's witnesses for their estimates of the benefits to accrue from the making of the improvement were the drainage of the property, the improved condition of the neighborhood for residential and other purposes, and the increased rentals consequent thereon, the substantial enhancement in the value of the property, and its greater marketability.

[1, 2] The only question to be determined is whether the lots of appellants were assessed more than they will be benefited by the improvement. The determination of this question must necessarily be based upon the opinions of the witnesses. Their appearance while on the stand, their manner of testify

(162 N.E.)

ing, and their apparent intelligence or lack of it had much to do with the weight accorded to their opinions by the jury and the trial judge. Hence, on a review of the question whether property has been assessed more than it will be benefited, the jury's verdict, approved by the trial judge, or the trial court's finding, will not be disturbed, unless it is palpably against the weight of the evidence. City of Chicago v. Marsh, 238 Ill. 254, 87 N. E. 319; City of Park Ridge v. Wisner, 253 Ill. 360, 97 N. E. 677; Ownby v. City of Mattoon, 306 Ill. 552, 138 N. E. 110; Topliff v. City of Chicago, 196 Ill. 215, 63 N. E. 692; City of Pana v. Baldwin, 265 Ill. 119, 106 N. E. 454; City of Chicago v. Weber, 260 Ill. 105, 102 N. E. 1001.

Appellants contend that, because the minimum figures in the range of benefits to which certain of the city's witnesses testified do not equal the assessment upon appellants' lots, there is therefore no testimony to show that the benefits to those lots will equal the assessment thereon. While the minimum estimate of benefit to which a witness testifies must be considered, yet the maximum estimate given by the same witness cannot be ignored. The lots in block 2 on the east side of ThirtyFirst street were assessed at $10.0168 per front foot. At this rate the aggregate assessment on the six lots facing west would exceed the benefits to the same lots, as fixed by all of the city's witnesses save one, by $4.72. When it is considered that opinions concerning benefits do not purport to, be mathematically exact, this difference is negligible. There was testimony, however, that the maximum benefit to the property on the east side of Thirty-First street was $11 per front foot, and at that rate the benefits exceeded the assessment. The average assessment on the lots abutting Thirty-First street on the west exceeds a benefit of $10 per front foot by 65 cents. These lots, it appears from testimony adduced by the city, are benefited from $10 to $12 per front foot. Hence the assessment on the lots west of the street was also within the range of the testimony.

for the restricted use. City of Lincoln v. Chicago & Alton Railroad Co., 262 Ill. 11, 104 N. E. 277; City of Chicago v. Kehilath Anshe Mayriv, 284 Ill. 210, 119 N. E. 905; City of Chicago v. Chicago City Railway Co., 309 III. 448, 141 N. E. 141. Where, however, land is voluntarily devoted to a private use, which may be changed at any time, the benefit derived from a local improvement is not confined to the owner's present use of the property, but extends to any use to which the property is adapted. City of Lincoln v. Chicago & Alton Railroad Co., supra; Clark v. City of Chicago, 166 Ill. 84, 46 N. E. 730; Leitch v. Village of La Grange, 138 Ill. 291, 27 N. E. 917.

The testimony in this case is conflicting. That offered by appellants tends to show that the assessment exceeds the benefits which will accrue to their lots. Some of appellant's witnesses based their opinions concerning benefits upon the present uses of the lots, without considering other uses for which they were adapted and to which they might be devoted. The assumption that the present uses to which the lots were put must be permanent was erroneous. The testimony offered on behalf of the city is sufficient to justify the jury's verdict. In any event, it cannot be said that the verdict and judgment are palpably against the weight of the evidence.

The judgment of the city court is affirmed. Judgment affirmed.

(331 Ill. 80)

PHELPS v. CITY OF CHICAGO.
(No. 17769.)

Supreme Court of Illinois. June 23, 1928. 1. Ejectment 9 (2)-Unless plaintiff in ejectment shows good legal title, he is not entitled to judgment regardless of equities.

In action of ejectment, only legal titles can be considered, and, unless plaintiff shows a good legal title in his favor, he is not entitled to judgment, regardless of any question of equities.

2. Taxation 791-In ejectment against city claiming under tax deeds, court had jurisdiction to provide for reimbursement under amendment of statute providing action (Revenue Act, § 224, as amended by Laws 1919, p. 762).

[3, 4] It is contended by appellants that the benefit to be derived from a local improvement should be based upon and determined by the present use of the property assessed. An improvement, such as paving a street, it is argued, is of little, if any, benefit or advantage to a manufacturing plant which is otherwise accessible and which uses the property assessed as a storage yard. Some of the testimony offered by appellants was based upon this theory. Where property is restricted by grant or statute to a particular use, from which it cannot legally be diverted, and the property is at the time of the improvement devoted to the restricted use, the true measure of the benefit which the improvement will confer is the increased value of the property imbursement to city.

Where ejectment action against city claiming under tax deeds was commenced before the amendment of Revenue Act, § 224, by Laws 1919, p. 762, providing that no judgment shall be entered in any case involving title to, or interest in, land in which party holding a tax deed has an interest, until proper reimbursement to holder of tax deed is made, but judgment there

in was rendered after amendment went into effect, court had jurisdiction to provide for re

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

3. Judgment 713(2)—Judgment in ejectment is conclusive as to all questions which could have been raised (Smith-Hurd Rev. St. 1927, c. 45, § 34).

Under Smith-Hurd Rev. St. 1927, c. 45, § 34, providing that every judgment in action of ejectment shall be conclusive, as to the title established in such action, on party against whom it is rendered, a judgment in ejectment is conclusive against attack, collateral or direct, as to all questions which could have been raised in the case.

4. Judgment 713(2)—Rule of res judicata extends to matters which might have been raised and determined as well as those actually determined.

The rule of res judicata embraces not only what actually was determined in the former case, between the parties and their privies, but it extends to any other matters properly involved which might have been raised and determined.

5. Judgment 576(1)-Rule of res judicata Is operative whether judgment be erroneous or not, if there is Jurisdiction.

Rule of res judicata, or estoppel by judgment, where there is no want of jurisdiction, is operative, whether the judgment be erroneous or not.

6. Judgment 713(2)—Judgment In ejectment against city claiming under tax deeds held res judicata against city's claim on tax deeds (Laws 1919, p. 762, amending Revenue Act, § 224).

Under Laws 1919, p. 762, amending Revenue Act, § 224, by providing that no judgment shall be entered in any case involving title or interest in land, to which holder of tax deed shall have interest until proper reimbursement to such holder, judgment in ejectment suit against city claiming under tax deeds held res judicata against city's subsequent claims on tax deeds in action by plaintiff for partition and to remove clouds of such tax deeds.

7. Taxation 800(1)-Statute requiring reimbursement of tax deed holder in action Involving title may be waived by holder (Laws 1919, p. 762, amending Revenue Act, § 224). Provision of Laws 1919, p. 762, amending Revenue Act, § 224, that no judgment shall be entered in any case involving title or interest in land to which holder of tax deed claims interest until proper reimbursement of such holder, may be waived by holder.

8. Equity 66-Maxim that one seeking equity must do equity does not permit disregard of, or collateral attack on, previous judgment. Maxim that one who seeks equity must do equity requires that a complainant shall not be given his rights, unless he also gives defendant his rights, but does not permit disregard of, or collateral attack on, previous judgment, and, where it has been previously adjudicated that defendant has no rights as he claims, or where such rights have been barred by a prior judgment, evidence cannot be received to contradict the judgment.

[blocks in formation]

PARTLOW, C. On June 12, 1923, defendant in error, George H. Phelps, filed his bill for partition in the superior court of Cook county against the city of Chicago and Ida Phelps Wyman, also praying for the removal of certain tax deeds as clouds on the title. Ida Phelps Wyman defaulted, an answer was filed by the city, upon a hearing a decree was entered as prayed, and a writ of error has been prosecuted from this court by the city.

The bill alleged that defendant in error and Ida Phelps Wyman were the owners of certain real estate in Chicago which was vacant and unoccupied. On various dates from 1909 to 1914 five tax deeds were issued to the city for the nonpayment of assessments levied against the property, which deeds were recorded. On October 28, 1913, defendant in error began an action of ejectment in the circuit court of Cook county against the city and others, alleging that he was the owner of the premises in fee simple. On May 1, 1919, a verdict was returned in his favor, and judgment was entered. On May 22, 1920, the judgment was vacated, and on November 11, 1920, on a second trial, a verdict was returned and judgment entered in favor of defendant in error, finding that he was the owner in fee simple. The city was served with summons in the ejectment suit, and appeared and pleaded to the declaration. The judgment in ejectment suit made no provision for reimbursing the city on account of the tax deeds, by reason whereof it was alleged that the city was barred from asserting any claim to reimbursement for taxes unpaid, as evidenced by the tax deeds. The bill alleged that the city gave out and pre

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(162 N.E.)

tended that the judgment in the ejectment suit was not a final adjudication, barring all claims of the city and that the city had a lien on the premises for the amount of the tax deeds, with interest, and was entitled to be reimbursed; that said false claims by the city constituted a cloud upon the title, tending to depreciate the value of the real estate and render it unsalable. The prayer was that the interest of the parties be determined and the city be perpetually enjoined from claiming that the judgment in the ejectment suit was not final adjudication of all claims of the city under the tax deeds; that the cloud created by the false claim of the city be set aside, and that commissioners be appointed to make partition. The city filed its answer to the bill, alleging that it had five tax deeds; that the proceedings upon which they were based were regular, valid, and legal; and that $1,467.23 was then due the city on said deeds. It denied having made any false claims as to its lien or right to reimbursement, and asked for strict proof of the ownership. The case was referred to a master, who found that the tax deeds were duly issued; that on November 11, 1920, a final judgment was rendered in the ejectment suit, finding that defendant in error was the owner in fee simple of the premises, which finding and judgment were still in full force and effect; that no part of the amount due the city on the tax deeds had been paid, and there remained due and unpaid to the city on February 1, 1924, $1,423.87; that said tax deeds were issued upon tax sales; that in the ejectment suit the city was

served with summons, appeared and pleaded to the declaration, and, by reason of the fact that the final judgment in the ejectment suit made no provision for reimbursement to the city on account of the tax deeds, the city was forever barred from asserting any claim for reimbursement; that the city could not in an affirmative manner maintain its action against defendant in error or against the premises for reimbursement; that any claim it had should have been, and presumably was, presented upon the trial of the ejectment suit; and that judgment is res judicata against the city, and it cannot be heard in this proceeding to show otherwise. The chancellor sustained the report of the master, and a decree was entered affirming his findings. The cloud upon the title arising by reason of the claim of the city for reimbursement was removed, and the city was perpetually enjoined from claiming or asserting any title or interest in the premises or any claim for reimbursement on account of any of the tax deeds. Defendant in error and Ida Phelps Wyman were decreed to be the fee-simple owners in equal parts, and the costs were assessed against the city. Later defendant in error conveyed all his interest in the premises to Ida Phelps Wyman, and an order was entered December 5, 1924, waiving

execution of the decree appointing commissioners.

The principal question for determination is whether the judgment in the ejectment case was res judicata as to the validity of the tax deeds and relieved defendant in error in the partition suit of the necessity of paying to the city the amount due thereon as a condition precedent to the entry of the decree removing the tax deeds as clouds on the title. [1] The removal of tax deeds as clouds on the title to real estate is governed by section 224 of the Revenue Act. Smith-Hurd Rev. St. 1927, c. 120, § 210. This section was amended July 1, 1919. The ejectment suit was filed prior to the amendment, but the final judgment was entered over 16 months after the amendment. In an action of ejectment only legal titles can be considered, and, unless the plaintiff shows a good legal title in his favor, he is not entitled to a judgment, regardless of any question of equities. McFall v. Kirkpatrick, 236 Ill. 281, 86 N. E. 139. In Glos v. Patterson, 195 Ill. 530, 63 N. E. 272, it was held that it is not necessary, in an action of ejectment, that the judgment in favor of the plaintiff be conditioned upon the repayment of taxes to the holder of a tax deed. Section 224, before its amendment, has been held to have no application to an action of ejectment, but it relates to equitable proceedings instituted for the purpose of setting aside tax deeds; that it was not the purpose of that section of the statute to change an action of ejectment into a chancery proceeding or to confer any new or enlarged jurisdiction upon courts of law. Riverside Co. v. Townshend, 120 Ill. 9, 9 N. E. 65. Before the

amendment it was held that the holder of an invalid tax deed is only entitled to reimbursement when his tax title is attacked and the deed set aside in a proceeding brought for that purpose by the owner of the land. City of Chicago v. Pick, 251 Ill. 594, 96 N. E. 539;

Gage v. Eddy, 186 Ill. 432, 57 N. E. 1030; Miller v. Cook, 135 Ill. 190, 25 N. E. 756, 10 L. R. A. 292. Under these authorities, if the judgment in the ejectment suit had been

rendered before the amendment of section 224 on July 1, 1919, the tax deeds could not have been set aside and the judgment could not have been conditioned upon defendant in error reimbursing the city for the amount due on the deeds; hence such a judgment could not have been res judicata in the partition proceeding.

The amendment of 1919 is as follows:

"No final judgment or decree of court in any case either at law or in equity or in proceedings under the Eminent Domain Act involving the title to or interest in any land in which such party holding such tax deed shall have an interest or setting aside any tax deed procured under this act shall be entered until the claimant shall make reimbursement to the party holding such tax deed and payments as herein provided in

so far as it shall appear that the holder of such Ideed or his assignors shall have properly paid or be entitled to in procuring such deed." Laws of 1919, p. 762.

[2] It is insisted by defendant in error that the effect of this amendment was to confer upon courts of law jurisdiction to provide for reimbursement in actions at law where tax deeds are set aside. In City of Chicago v. Collin, 302 Ill. 270, 134 N. E. 751, which was a condemnation suit, it was held that this amendment applies only to void tax deeds, and it does not require reimbursement to be made until the claim thereon is established. In Mather v. Parkhurst, 302 Ill. 236, 134 N. E. 91, which was an ejectment suit, it was held that this amendment applies in an action of ejectment so as to require reimbursement to a city for tax deeds acquired by it, even though the plaintiff acquired title and the tax deeds were issued before the amendment took effect. Under this last authority a court of law in an ejectment suit has the right to provide in its judgment for the reimbursement of the holder of invalid tax deeds. In the case at bar, the judgment in the ejectment suit was rendered after this amendment went into effect; therefore the court had jurisdiction in the ejectment suit to provide for the reimbursement of the city, which it did not do.

[3-5] Section 34 of chapter 45 of our Statutes (Smith-Hurd Rev. St. 1927) provides that:

"Every judgment in the action of ejectment shall be conclusive, as to the title established in such action, upon the party against whom the same is rendered."

A judgment in ejectment is conclusive against attack, either collateral or direct, as to all questions which could have been raised in the case. Barrett v. Chicago Terminal Transfer Co., 271 Ill. 642, 111 N. E. 563. The rule of res judicata embraces not only what actually was determined in the former case between the same parties or their privies, but it extends to any other matters properly involved which might have been raised and determined. Marie Church v. Trinity Church, 253 Ill. 21, 97 N. E. 262; People v. Chicago, Burlington & Quincy Railroad Co., 247 Ill. 340, 93 N. E. 422; Phelps v. City of Mattoon, 177 Ill. 169, 52 N. E. 288. The rule of res judicata, or estoppel by judgment, where there is no want of jurisdiction, is operative whether the judgment be erroneous or not. Jenkins v. International Bank, 111 Ill. 462; McFall v. Kirkpatrick, supra.

[6, 7] In the ejectment suit, the city was served with a summons; it appeared by its attorneys and filed a plea. It had a right in that case to raise any question which the court had jurisdiction to determine. One of the questions which the court had jurisdiction to determine was the question of the right of

the city to be reimbursed in the amount due on the tax deeds. This question was not adjudicated, but a judgment was entered which found that the city was guilty of unlawfully withholding from defendant in error the possession of the premises described in the declaration, and that he was the owner of the premises in fee-simple absolute in his own right, and was entitled to the immediate possession of the same. This judgment embraced not only what actually was determined in the ejectment suit, but it also extended to any other matter properly involved which might have been raised and determined.

It is insisted by the city that the provisions of the statute with reference to setting aside tax deeds is mandatory, and that no tax deed can be set aside, unless provision is made for the reimbursement of the holder thereof. The city, if it saw fit, had the right to waive the reimbursement, and, if it did not insist thereon, it was barred in a subsequent proceeding to insist upon that right. The evidence in the ejectment suit does not appear in this record. The question of the validity of the tax deeds was not raised by the pleadings in the case. Whether it was raised by the evidence we have no means of knowing, but, whether that question was or was not raised, the judgment of the court in the ejectment suit was conclusive, and was res judicata in the partition suit.

[8] Counsel for the city in their brief say that:

"If the defendant in error, Phelps, had been satisfied to rest on his judgment for the possession in the ejectment suit he probably would have been secure, but going into a court of equity to have a cloud removed full and complete equity will be meted out."

This is an admission by the city that the judgment in the ejectment suit was conclusive of the right of the city to be reimbursed under the tax deeds. The city claims, however, that the right to reimbursement therefor is on the ground that defendant in error went into a court of equity and asked for affirmative relief. In support of this contention, it is insisted that he who seeks equity must do equity; that defendant in error in the partition suit sought to have the tax deed set aside; that he asked for affirmative relief, and, before he is entitled to receive it, he must do equity by reimbursing the city. This equitable maxim does not permit a disregard of, or a collateral attack upon, a previous judgment of a court of competent jurisdiction. The effect of the maxim is that all rights of the parties to that suit shall be forever settled in that suit, and that a complainant shall not be given his rights, unless he also gives the defendant his rights, but, where it has been previously adjudicated that the defendant had no such rights as he claims, or where such rights have been barred

« PrethodnaNastavi »