Imágenes de páginas
PDF
EPUB

v. Elgin City Banking Co. 136 id. 60;) and if incapable of being specifically enforced against one of the parties it will not be enforced against the other. (Bauer v. Lumaghi Coal Co. supra; Tryce v. Dittus, 199 Ill. 189; Kuhn v. Eppstein, 219 id. 154; Ulrey v. Keith, 237 id. 284.) In Bauer v. Lumaghi Coal Co. supra, the rule is stated as follows: "As a general rule, specific performance will not be decreed in any case where mutuality of obligation and remedy does not exist. * * * The general principle is, that where the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other.” In Baird v. Linthicum, 1 Md. Ch. 345, Chancellor Johnson held "that if one of the parties is not bound or is not able to perform his part of the contract he cannot call upon the court to compel specific performance by the opposite party.” The facts in this case bring the contract in question well within the rule above announced.

It appears very clearly from the evidence that one of the main objects, if not the only object, in filing the bill was to enable A. L. Williams to recover the several amounts paid by him into the treasury of appellee as a member of the association. The evidence shows that he and the appellant, Carroll, by assignment from Neighbors, were the owners of all the stock and assets of the association. Williams undoubtedly has a right to a return of his pro rata share of the assets of the association, and to require that Neighbors, and all other members of the association, in a proper proceeding account for all moneys and property of the association that have come into their hands or possession. But his remedy is not by invoking the aid of a court of chancery to decree specific performance of a contract the appellee had no lawful power or authority to make, and thereby invest it with the legal title and possession of real estate which it has no legal right to own or possess. Courts of equity cannot lend their aid to the specific enforcement of void and illegal contracts and agreements, even where the evidence in the record shows that to do so would afford the most speedy way of adjusting equities between the parties. Long established rules and well settled principles of law cannot be wholly disregarded and made to yield to the seeming equities of any particular case, merely because the party aggrieved has misconceived the proper proceeding to be instituted in a court of chancery for the accomplishment of the purpose sought.

For the reasons given we are constrained to hold that the decree of the superior court must be reversed and the cause remanded to that court, with directions to dismiss appellee's bill for want of equity.

Reversed and remanded, with directions.

THE PEOPLE ex rel. Jack Lusk, County Collector, Appel

lant, vs. HENRY J. GARNER, Appellee.

Opinion filed February 17, 1915Rehearing denied April 8, 1915.

1. Taxes-assessment under section 62 of Farm Drainage act should not include interest on bonds. The assessment levied under section 62 of the Farm Drainage act, where a special district has been organized, is intended to be only for the amount required for the construction and completion of the contemplated improvement, and it should not include an amount for interest on bonds.

2. Same-levy for interest must be made in accordance with section 70 of Farm Drainage act. After the levy of the assessment under section 62 of the Farm Drainage act in a special district the matter of dividing the assessment into installments may be considered by the commissioners, and if such course is decided upon, the commissioners must proceed under section 70 of such act in making a levy for interest.

3. Same-when tax to pay interest is illegal. Under section 70 of the Farm Drainage act a tax to pay interest on bonds is a new tax, which can only be levied by the commissioners or the Auditor of Public Accounts in the manner provided by the statute, and a tax extended without a proper certificate from such officer or officers, as the case may be, is illegal.

4. Same-taxing officers are presumed to have performed their duty. In the absence of any showing that the provisions of sections 62 and 63 of the Farm Drainage act were not complied with in extending a tax to pay an installment of bonded indebtedness, it must be presumed that the officers whose duty it was to levy and extend such tax performed their duty and that the tax was legally levied.

5. Same-items mentioned in section 70 of the Farm Drainage act should be stated separately in commissioners' certificate. Section 70 of the Farm Drainage act does not refer to the principal indebtedness due, but the items mentioned in such section, such as interest accrued, past due interest and amounts necessary to be levied, if any, to keep the work in repair for the ensuing year, are amounts the tax-payers are entitled to know about and should be stated separately in the certificate of the commissioners.

6. SAME-provision for extending a drainage tax the same as other taxes applies only to items mentioned in section 70. The statute does not require that drainage taxes shall necessarily be extended by the county clerk on the collector's books the same as other taxes for State, county and municipal purposes, as that provision is found in section 70 of the Farm Drainage act and applies only to the items mentioned therein.

7. Same-section 27 of the Farm Drainage act was repealed by the amendatory act of 1901. Section 27 of the Farm Drainage act, which allowed an appeal to the county court from the special assessment roll or tax list, was repealed by the amendatory 'act of 1901.

8. SAME—when party is not estopped to show his land was assessed more than benefited. The fact that an owner of land in a special farm drainage district has paid two prior assessments levied to pay interest upon the amount of the drainage tax does not preclude him, upon application for. judgment of sale for an installment of the tax, from introducing evidence to show that his land has been assessed more than it was benefited.

APPEAL from the County Court of Saline county; the Hon. K. C. RONALDS, Judge, presiding.

F. William Kraft, and W. F. Scott, for appellant. KANE & Wise, for appellee.

Mr. JUSTICE CRAIG delivered the opinion of the court:

Appellee filed four objections in the county court of Saline county, at the June term, 1914, of said court, to the application of Jack Lusk, county treasurer of Saline county,

for an order and judgment of sale of the lands of appellee in Rector Special Drainage District of Saline and Hamilton counties for a delinquent special drainage tax extended against said lands. Objections i and 2 were sustained, objection 3 was withdrawn and objection 4 was overruled. The county treasurer has appealed from the judgment of the county court sustaining objections 1 and 2. Appellee has assigned cross-errors to the action of the court in overruling objection 4.

The first, second and fourth objections are as follows:

(1) “The commissioners of the said Rector Special Drainage District did not file any proper, legal and valid certificate of levy or statement on or before December 1, 1913, with the county clerk of the county of Saline, the same being the county where said district was organized, as required under and by virtue of section 70 of the Farm Drainage act.

(2) “The county clerk of said county of Saline did not extend the said tax on the collector's books, the same as State, county and municipal or other taxes are extended, in appropriate columns, as required by section 70 of the Farm Drainage act.

(4) "Said assessment against said premises above described is more than said premises are benefited by reason of the proposed drainage.”

Rector Special Drainage District was organized as a special farm drainage district under the Farm Drainage act. (Hurd's Stat. 1913, sec. 49 et seq. p. 963.) On November 22, 1910, the commissioners ordered that a special assessment of $78,234.36 be levied on the lands of the district and certified the same to the county clerk, as clerk of the district, as provided by section 62 of said act. Thereafter, on December 6, 1910, the commissioners made out and filed in the office of the county clerk a special assessment or tax list, as required by that section of the act. On the following day, December 7, the commissioners, by reso

lution, ordered that the special assessment or tax so levied be divided into eight annual installments, as follows: One of $5000, payable on or before January 1, 1914; two of $8000 each, payable on or before January 1, 1915 and 1916, respectively; one of $11,000, payable on or before January 1, 1917; three of $12,000 each, payable on or before January 1, 1918, 1919 and 1920, respectively, and one of $10,234.36, payable on or before January 1, 1921, each installment to bear interest at the rate of six per cent per annum from and after January 1, 1911. On March 29, 1911, the commissioners adopted a resolution that bonds be issued, numbered from 1 to 40, inclusive, payable serially on April 1, 1914, and each year thereafter, to and including April 1, 1921. None of the bonds were ever registered with the Auditor of Public Accounts, as authorized by section 67 of the act. No further action has been taken by the commissioners in the premises since the adoption of the resolution authorizing the issuance of the bonds of the district. It further appears appellee paid two previous assessments levied to pay interest on the total amount of the special assessment or tax levy, and that the manner in which the special tax in question was extended was as follows: The county clerk extended the tax for the total amount of the special assessment or tax levy of $78,234.36, and the county treasurer extended the tax or assessment for the amount required to pay the interest on the same and the first installment of $5000, due January 1, 1914. The total amount extended against appellee's lands on this basis is $177.12. No statement appears to have been filed by the commissioners with the county clerk giving the date, number and amount of all notes or bonds issued by the district which remain unpaid, etc., as provided by section 70 of the act. The application of the provisions of this section to a situation such as the one at bar is one of the controverted questions in the case.

« AnteriorContinuar »