Scarritt vs. Chapman.

by the Auditor, on the default of the owner, he was bound to preserve the evidence of his acts by proper entries in his books. If he neglected his duty in these respects, it might increase the difficulty of proving the listing, but would constitute no legal excuse for omitting to make the proof altogether. It would not relieve the plaintiffs from the necessity of proving the listing in some legitimate way. If the evidence of the listing was not preserved in the records or files of the office, they should be allowed to prove a compliance with the provisions of the statute by the best evidence of which the nature of the case is susceptible.

The presumption that the land had been duly listed for taxation was rebutted by the defendant; and the plaintiffs failing to prove affirmatively a legal listing, they were not entitled to recover. The pro forma decision of the Circuit Court was therefore erroneous, and its judgment must be reversed, with costs, and the cause remanded for further proceedings.

Judgment reversed.

JONATHAN A. SCARRITT, plaintiff in error, vs. SARAH ANN CHAPMAN, defendant in error.

Error to Madison.

The precept under which the sheriff makes sale of lands for the non-payment of taxes, need not run in the name of the people.

This was an action of debt, brought by defendant in error under the statute to recover penalties for cutting trees. The defendant below admitted the cutting and carrying away of the trees at the time and place mentioned in the declaration, and the only question contested was, whether the plaintiff below had a good title in fee simple to the land on which the timber was

cut.

It was agreed that one Robert W. Finch, under whom the defendant below claimed title, was the owner in fee simple of the land on which the trees were cut, at the time the same was sold for the non-payment of taxes. Whereupon the plaintiff below,

Scarritt vs. Chapman.

to prove the tax title of the person under whom she claimed, offered in evidence a judgment against the land in the declaration mentioned, for taxes rendered in the Madison Circuit Court, A. D. 1845. The plaintiff then offered to read in evidence the process upon which the land was sold, and which was issued on said judgment. The defendant objected to the reading of this, because such process did not run in the name of the people, and because it was not directed to the sheriff of Madison county. Thereupon plaintiff's counsel moved to amend said process, by adding to the beginning of said process, the words "The People of the state of Illinois to the sheriff of Madison county-Greeting;" which motion was allowed, and said amendment was accordingly made. The plaintiff below then offered in evidence a deed for the land in the declaration mentioned, from the sheriff of Madison county to one Chapman, under and by virtue of the sale made on said process; and also a deed from said Chapman to the said plaintiff'; which being all the evidence offered, the Court, Underwood, Judge, presiding, at the March term, 1849, found for the plaintiff, and rendered judgment against the defendant below for eight dollars, and costs. Thereupon said defendant sued out this writ of error, and assigns for error, the allowing of the amendment, and that the process under which the land was sold was void, because it did not run in the name of the people.

LEVI DAVIS and NELSON G. EDWARDS, for plaintiff in error.

WM. MARTIN, for defendant in error.

Opinion by TREAT, C. J.:

The only question in this case is whether the precept, under which the sheriff makes sale of lands for the non-payment of taxes, must run in the name of the people of the state of Illinois. The precise question was before the Court in the case of Curry vs. Hinman, ante, 420; and it was there held that the precept is not process, within the meaning of the constitution, and need not, therefore, run in the name of the people. The Circuit Court having so decided, its judgment will be affirmed, with costs.

Judgment affirmed.

Sweezy vs. Chandler et al.

11 445

JEROME SWEEZY, appellant, vs. ABIEL CHANDLER, et al., appel- 128 108

lees.

Appeal from Henderson.

An assignee of a judgment, under our statute giving the right of redemption of realty sold
under an execution to judgment creditors, within fifteen months after sale, is in contem-
plation of law a judgment creditor, and as such is entitled to redeem.
When real estate was sold under an execution issued on the second, in point of time, of three
judgments, and afterwards an execution was issued on the oldest of the three judgments,
and levied upon the same real estate which was sold, held that the purchaser under the
execution issued upon the second judgment, neglecting to redeem within twelve months
of the sale, under the execution on the oldest judgment, was precluded from redeeming
as a judgment creditor, inasmuch as by his sale under his execution, he was no longer a
judgment creditor. Held, also, that the creditor holding the junior of the three judg-
ments, had the right of redemption under the sale on the execution issued on the oldest
judgment, without having redeemed from the sale on the execution issued on the second of
said judgments. Held, also, that the title acquired by redemption under the sale on the
execution issued on the oldest judgment, would hold said realty in preference to the pur-
chaser under the sale made on the execution issued on the second judgment.
Under our statute, it is not essential that a judgment should be a lien upon the estate, in
order to authorize the judgment creditor to redeem from a previous sale.

This was an action in ejectment, submitted to the Judge of the Henderson Circuit Court, upon the following agreed state

of facts:

The action was brought to recover lot fourteen and the east half of lot fifteen, in block sixty-eight, in the town of Oquawka, in said county.

It was agreed that the plaintiff showed on the trial the following title, to wit, a judgment in the Circuit Court of Warren county, rendered on the 13th November, A. D. 1843, in favor of J. B. Camden et al., against John Harris, for the sum of $2,103; a sale on the 15th day of August, 1844, of said lots, to the plaintiffs below, upon an execution issued on said judgment from the Circuit Court of Warren county, and a deed from the sheriff, made on the 18th day of August, 1846; and that said. judgment, levy and sale were in all respects regular. It was agreed that the defendant below showed on the trial the following title, to wit, a judgment against the said John Harris, rendered on the 27th May, 1842, and a sale by virtue thereof on the 9th day of August, 1845, to one Henry Jennings, of the lots in controversy, upon an execution dated 17th July, 1845, issued from the Circuit Court of Henderson county; also, a judgment in the Henderson Circuit Court in favor of Martin Thayer against the said John Harris, rendered June 3, 1844, and an assignment of the same to Charles M. Harris, on the 12th February, 1846; also, an execution, in due form of law, on said judgment, dated 6th

Sweezy vs. Chandler et al.

November, 1846, directed to the sheriff of Henderson county, and a certificate of redemption, which redemption was made by virtue of said judgment and execution; also a levy of said execution, in due form of law, on said lots, and a sale of said lots by the sheriff, by virtue of said execution, to the said Charles M. Harris, on the 22d January, 1847; also a deed, in due form of law, from the sheriff of Henderson county to said Charles M. Harris, for said lots, dated 24th March, 1847, executed, by virtue of the sale to him, on the 22d January, 1847.

It was admitted that executions were issued upon all the aforesaid judgments, within a year and a day of the rendering of each. It was admitted that the levy made on the execution, in favor of Camden et al., was duly recorded in Henderson county. It was also agreed, that possession of the defendant below was under one Charles M. Harris, and that plaintiffs and defendant claim title from John Harris, the father of Charles M. Harris.

Upon this agreed case, Purple, Justice, found against the defendant, and rendered judgment accordingly, at May term, 1849. Defendant below appealed, and assigns for error, the judgment against him, and in deciding that he had no right to redeem from the sale, and the judgment in favor of Hughes.

WILLIAMS & LAWRENCE, for appellant.

BROWNING & BUSHNELL, for appellees.

Opinion by Mr. Justice CATON:

The decision of this case involves a construction of our statute authorizing judgment creditors to redeem. The premises in controversy are situated in Henderson county, and originally belonged to J. Harris, against whom three judgments were obtained. The first was recovered by Hughs, in the Henderson Circuit Court, on the 27th of May, 1842. The second was in the Warren Circuit Court in favor of the Chandlers, and recovered on the 13th of November, 1813; and the third was in favor of Thayer, and recovered in the Henderson Circuit Court on the 3d of June, 1844. An execution was issued on the second judgment, which was levied on the premises in question, and a certificate of the levy filed with the recorder of Henderson county, on the 20th of November, 1843, and the premises

Sweezy vs. Chandler et al.

sold, on the 15th of August, 1844, to the plaintiffs below, who obtained a sheriff''s deed on the 18th of February, 1846. On the 17th of July, 1845, the plaintiff in the senior judgment issued an execution, which was levied on the same premises, and under which they were sold to Jennings on the 9th of August, 1845. On the 12th of February, 1846, Thayer, the plaintiff in the youngest judgment, assigned the same to C. M. Harris, who, on the 6th of November, 1846, issued an execution, and on the same day redeemed from the sale under the oldest judgment, and levied his own execution upon the same premises, under which they were again sold, and he became the purchaser on the 22d of January, 1847, and took a sheriff's deed on the 24th of March following.

The question is, had the assignee of the youngest judgment a right to redeem from the sale under the senior judgment, and thus cut out or overreach the title acquired under the second judgment. The levy under the second judgment was prior to the date of the youngest judgment, which, however, become a lien upon the premises before the sale under that levy, but from that sale no redemption was ever attempted. The redemption from the sale under the senior judgment, by the assignee of the youngest judgment, was after the expiration of twelve months. and before the expiration of fifteen months from the date of that sale. The purchasers under the first sale never redeemed the premises from either the sale under the oldest or the youngest judgment. By the sale under the second judgment that became satisfied, and the plaintiffs ceased to be judgment creditors, and became purchasers, and as such alone had they a right to redeem from the sale under the senior judgment. Hence their right of redemption was gone, and the title which they had acquired irrevocably lost, at the expiration of the twelve months, although they have still a right to insist upon their title until a better one is legally obtained under the senior judgment, and therefore they contest the right of the assignee of the youngest judgment to redeem from, and thus acquire a title under the oldest judgment.

By section 14, chapter 57, R. S., it is provided that "after the expiration of twelve months, and at any time before the expiration of fifteen months, from the sale of any lands or tenements under the provisions of the preceding sections hereof,