Munson v. Minor. one thousand dollars. It appears, on the contrary, to have been levied to pay teachers and to support the schools of the district, for the period of six months, as required by the statute, and for general school purposes. This they had authority to do, and were required by the statute to perform it as a duty. Even if the question had been submitted to the people, whether this tax should be levied, and they had decided against it, the directors should nevertheless have proceeded to levy and collect it. It was urged that the case of Beverly v. Sabin, 20 Ill. R. 357, holds such a vote to be necessary. In that case, the directors, without having submitted the question to a vote of the district, proceeded to levy a tax to pay for a school-house, which had been constructed without the consent of the voters, at a cost of more than one thousand dollars. That case holds, that they had no power to make the levy, without its being submitted to the voters of the district. And although that opinion does not in terms refer to the 48th section, it is based upon its provisions, and is in harmony with the construction here given, to those sections of the law. It was also insisted that the plat of the district, furnished to the county clerk, was not properly certified, and conferred upon that officer no authority to extend the tax on the collector's warrant. The object in requiring this map to be returned, was to enable the clerk to correctly extend the tax against the tax payers of the district. This map was not certified by the president and clerk of the board of directors, as required by the act, but when we consider the object of the law, we are inclined to the opinion that the provision is only directory, and as there is no pretense but that the clerk has extended the tax correctly, that it can form no objection in a collateral proceeding. If this were an objection, it only relates to the mode of assessment, and the 44th section of the revenue act of February 12th, 1853, (Scates' Comp. 1042,) which was in force when this levy was made, provides that "no assessment of property or charge for taxes thereon, shall be considered illegal, on account of any informality in making the assessment, or in the tax lists, or on account of the assessments not being made or completed within the time required by law," which is certainly broad enough in its terms, to cover this defect. It is only urged that this certified plat was requisite, because it was one of the formal requirements of the statute in levying the tax. This provision was doubtless intended to cover formal defects of this character. Upon a careful examination of all the elementary treatises on equity jurisprudence, as well as the adjudged cases to which we have had access, we do not find that a court of equity has assumed jurisdiction to enjoin a tax, for mere errors in its assess Munson v. Minor. ment or the collector's warrant, in case it was levied by officers de facto, when authority to levy such a tax, was incident to their office. And it is believed that the cases are rare, even where the tax had been levied by persons having no pretense of legal authority to make such a levy, or in cases where the tax was not authorized by law, or where the warrant for its collection was void, that courts have interposed to stay its collection. In the few cases that we have found, where relief was granted, no question as to jurisdiction was raised. No rule is more familiar than that courts of equity will not interpose to give relief, in cases where the party has a full and complete remedy at law, unless it be where the jurisdictions are concurrent. That in case of a levy of an illegal tax, a court of law has jurisdiction, there can be no doubt. If the directors had the legal right to levy the tax, they no doubt have the right to collect it, and if they were not vested with such a power, or if they failed to observe essential legal requirements in its exercise, it would be void, and if coerced by distress, they would be guilty of a wrong, for which a court of law would afford an adequate remedy. Trustees of Louisville v. Gwathmey, 1 A. K. Marsh. 554. If persons having no pretense of legal authority, were to levy a tax, or if persons not holding an office to which the power to levy a tax is incident, or holding an office to which it is not incident, were to levy a tax, the court might interpose. But if officers de facto or de jure, exercising an office to which the power is incident, exercise it, the courts will not interpose to prevent its collection. If courts of equity were to entertain jurisdiction, and enjoin the collection of taxes, in all cases in which mere informalities and irregularities have occurred in their assessment and levy, it would lead to great delay in their collection, and tend seriously to embarrass every department of the government, whether of state, county, town, or city, and would render the operation of the school system very precarious. While, if the party conceiving himself aggrieved, is left to his remedy at law, such inconveniences will not be felt. And even if we had the power to assume jurisdiction to grant relief, when we see that its exercise would probably lead to such embarrassment in the finances of these various departments of our municipal polity, we should hesitate long before assuming the exercise of such a power. But we conceive that a court of equity is vested with no such authority. The decree of the court below is affirmed. Decree affirmed. IN Byrne v. Morehouse et al. 22 602 PHILLIP BYRNE, Appellant, v. DICKINSON B. MOREHOUSE 127 561 et al., Appellees. APPEAL FROM JO DAVIESS. Parties are estopped by the recitals in their deed. Where commissioners to allot government land in Galena, decided that A. B. and C. were entitled to the preemption to two lots, and a partition of the same was made by deed between them, each would hold under the partition deed, whatever their anterior rights might have been. THIS was an action of ejectment, declaring for the undivided half of lot No. 8, block A, in the city of Galena, county of Jo Daviess, Illinois. Plea, general issue. Stipulation by parties, upon which cause was tried. Lot entered by David Smith and John McNulty, July 26, 1837. May 29, 1838, deed of partition made of said lot between Smith, McNulty and James Nagle. Recorded July 26th, 1839. Wm. Navin recovered judgment against said Nagle, before a justice of the peace, and filed transcript in the clerk's office of the Circuit Court. Execution issued, and all of Nagle's interest in said lot was sold by the sheriff, to Wm. Navin, 16th September, 1840. Phillip Byrne, the plaintiff, recovered judgment in the Circuit Court, October term, 1841, against Nagle, and redeemed from Navin's judgment, and sold the interest of Nagle and got sheriff's deed, December 27, 1841. It is admitted that all the proceedings under said sales were regular, and all the title Nagle ever had in said lot vested, and still vests, in the plaintiff. Defendants' possession admitted. Defendants have undivided half of said lot, and plaintiff seeks to recover the other half. Cause to be submitted on this statement upon the construction of the partition deed, as to the interest the parties took under said deed, for a trial; either party to appeal, if desired. Court found an estate in fee of the undivided one-fourth part of the said premises in the plaintiff. Court overruled motion for new trial, and rendered judgment on the finding, to which plaintiff excepted, and prayed an appeal, which was granted. Errors assigned: 1. The court erred in finding that plaintiff was entitled to only one-fourth interest in the said premises, instead of one-half of the same. trial. The court erred in overruling plaintiff's motion for a new 22 603 151 541 Byrne v. Morehouse et al. 3. The court erred in rendering the judgment aforesaid in manner and form aforesaid. COOK & GLOVER, for Appellant. M. Y. JOHNSON, for Appellee. CATON, C. J. The only question which this record presents, arises upon the deed of partition executed on the 29th of May, 1838, by McNulty, Smith and Nagle. That deed must receive the same construction, now that the grantees of the parties to it are contesting their respective rights arising under it, as if this controversy had arisen between the original parties to the deed. That deed recites that whereas Wann, Turney and Leach, commissioners on behalf of the United States, did, on the 28th of February, 1838, certify that McNulty, Smith and Nagle, were entitled to a pre-emption to lots eight and nine, in Galena, as will more fully appear by the certificate of the commissioners, therefore the parties, did by that deed, make a full, perfect and absolute partition of the said lot of land to and among them, in two parts. The deed then proceeds to assign one portion of lot nine to Smith and the other portion of lot nine and the whole of lot eight to McNulty and Nagle, Smith conveying his interest in the portion assigned to McNulty and Nagle to them, and they conveying the portion assigned to Smith to him. In an agreed statement of facts, it is admitted that the two lots in question, were entered by McNulty and Smith on the 26th day of July, 1837, and a certificate of entry duly issued to them, by the land officers. The question now is, whether Nagle took by the partition deed one-half, or one-fourth of the portion of land, assigned to McNulty and Nagle. The facts admitted show that the legal title, both at the time of the award of the commissioners and also at the time of the execution of the deed of partition, was vested in McNulty and Smith alone. How it is, that the commissioners appointed by the general government to award pre-emptions to certain lands in Galena, should be deciding upon lands already entered by individuals, and which entry does not appear to have been disputed or questioned, is not shown by this record. But we shall not trouble ourselves with that inquiry,-we will content ourselves with construing the deed with the light before us. The award of the pre-emption, to the three, could not of itself convey to them the legal title, had it still remained in the United States, much less could it divest the title previously vested in McNulty and Smith. We recognize, to its fullest extent, the doctrine of estoppel by the recitals in this deed, Byrne v. Morehouse et al. which is insisted upon by the counsel for the plaintiff. No party claiming title under that deed, however remotely, can be permitted to deny any fact admitted to exist by those recitals. However contrary to the truth they may be, unless obtained by fraud, they must stand as uncontroverted truth; and whatever rights legitimately arise upon such admitted facts, may be at all times asserted, whether it be to obtain or to defend the possession of such rights. What fact, is by this recital admitted to exist? It is simply, that the commissioners awarded to the three a preemption to land which is the subject of partition by the deed. As already stated, that award by the commissioners, did not invest Nagle with any title, nor did it divest McNulty and Smith of any title. The legal title to the land continued precisely as it was before. Strike out of the deed this recital and Nagle took one-half of the title which Smith conveyed to him and McNulty, and McNulty took the other half, leaving Nagle possessed of the title to one-fourth of the premises, and McNulty of three-fourths. If the recital in the deed had been that Nagle was at the time of its execution, a joint owner of the premises with the others, or that he was invested with any portion of the title to them, effect would have to be given to the deed, as if such fact were true, although it might be admitted on the trial that it was false. Such, however, is not the case. The admission is, that the commissioners awarded to him jointly with the others, a pre-emption right to the premises, that is, a right in preference to all others, to purchase them of the government at a certain price. Suppose the fact admitted by this recital were not in the deed, but had, upon the trial been admitted to be true, could it have the effect to make Nagle a joint owner of the land with the others, at the time of the execution of the deed of partition? Probably, no one would ever insist that such a result would flow from the existence of such a fact. This it seems to us decides this whole case. We may conclude that both McNulty and Smith recognized in Nagle some right or interest to these premises as flowing from this award of the commissioners, but whatever that right may have been, it was of an equitable and not of a legal character. Whether it was a tangible equitable right, capable of being established in a court of equity, it is not for us now to say. We concur with the court below in the construction given to this deed, and affirm the judgment. Judgment affirmed. |