| Ill. | Jun 14, 1880
delivered the opinion of the Court:
This was an application for a writ of mandamus. The petition alleges that appellee was the owner of claim 594, section 616, township 3, range 10, in the county of Madison, containing one hundred acres. That before the first day of May, 1875, he sold twenty acres to the Chicago, Alton and St. Louis ¡Railroad Company, and to other railway companies, and these grantees then and ever since have been the owners thereof; that the town assessor, in 1876, was informed by petitioner that he was the owner of only eighty acres of the tract, and the assessor so listed it for taxation; that he attended the meeting of the board for the correction of errors in assessments for taxation for that town, and found it listed as eighty acres; that the town collector refused to accept the pro rata amount due on this eighty acres, but demanded the taxes on one hundred acres, and because of the nonpayment of the taxes on the whole tract, it was forfeited to the State.
The petitioner, in 1877, gave to the assessor the same information, and the land was listed as an eighty acre tract, and he in like manner attended the board for the correction of errors in assessments, and found it listed as eighty acres. But the collector of taxes for the town demanded of petitioner the entire amount of taxes on the one hundred acres, and refused to accept the taxes on eighty acres of the tract; that by his attorney he petitioned the county board to abate the taxes pro rata on the tract of land, but the board refused.
Petitioner prays that the board be compelled to make the abatement for the years 1876 and 1877, and to cancel the forfeiture on the receipt of the taxes pro rata on the eighty acres.
The board of supervisors failing in anywise to answer, they were defaulted. At the same term of the court a motion to set aside the default was entered, and was overruled at a subsequent term of the court, and a peremptory writ was awarded to compel the county board to make the abatement and vacate the forfeiture; and the board appeals, and urges a reversal.
The default admits the facts averred in the petition to be true, but does not admit that the facts in law entitle petitioner to relief. If the facts thus admitted to be true do not authorize or require the relief, the court has no power to grant it. Plaintiff, on a default, is not entitled to a judgment unless he, by his declaration, has shown a right of recovery. If, on looking through the record, the court sees that there are grounds for arresting the judgment, the court should refuse judgment, notwithstanding the default.
To recover, the plaintiff must show a sufficient cause of action, and this is true whether there be a trial or a default. The default confers no more rights than a finding of a jury. And all know that if the facts found by a jury do not authorize a recovery, the court will refuse to enter a judgment. So, in this case, if the facts averred in the petition do not authorize the relief sought, the judgment must be reversed.
There are grave objections to granting the relief prayed. The petition does not specify what portion of the one hundred acre tract is embraced in the twenty acres sold. It does not describe the eighty acres nor the twenty acres as separate and distinct tracts. The State and county municipalities, for anything that is shown, are entitled to their taxes on one hundred acres, and being so entitled they can not be required to accept the taxes on but eighty acres, or only four-fifths of the amount in full for the taxes on the one hundred acres. The petition fails to show that the collector can receive the taxes on eighty acres as a distinct part of the tract and hold a specified twenty acres for the balance of the tax.
There is, however, another and insuperable objection to granting the writ. Petitioner asks that the county board be required to set aside the forfeiture. It is manifest that the board has no such power. When the land was stricken off to the State at the collector’s sale it became the purchaser. And this is nevertheless true whether it be called a purchase by the State or a forfeiture to the State. lío one, we apprehend, would contend that if one person obtains a judgment against another in the circuit court, sues out execution, sells lands of the defendant and purchases them, that the defendant could, with any pretence of legal right, go before' the county board and demand that it set aside the sale, and on refusal could compel that body to do so by mandamus. And in principle, is there any difference in such a case and the present? Here, lands were assessed for taxes; they were not paid and the land was returned as delinquent; application was made to the proper court, and a judgment rendered that the land be sold for the payment of the taxes. Under the judgment the proper officer offered the land for sale and it was struck off to the State as a purchaser. By what authority can the county board interfere to set aside that sale ? If any potver exists anywhere it is in the court rendering the judgment and ordering the sale. But the board has no more power to do so than a justice of the peace or a constable. In requiring the county board to cancel the forfeiture of the land to the State there was palpable error.
Again, we are not aware of any power in the county board to make any abatement of taxes legally assessed, extended and placed in due course of collection. If a party is aggrieved by an over assessment he should apply to the board of review to have it corrected, or to the July session of the board, under the 97th section of the Revenue law. But when property has been assessed and the tax extended and the books placed in the hands of the collector, we are aware of no law authorizing the board to make any abatement. Or even after its session on the second Monday in July.
The General Assembly has conferred no power on the board to abate State, or other than county taxes, and we are not informed of any express authority for that body to abate county taxes. If the county hoard may abate State and other municipal taxes in one case, they may in all cases. If they may do so for one reason they may for any reason or without reason, and thus defeat the collection of all revenue. The board has no interest in or control over any tax levied for State or municipal purposes except for county purposes, and hence has no right to intermeddle with its collection, nor can it be compelled to interfere.
For the errors indicated the judgment of the court below is reversed.
Judgment reversed.