| Ill. | Sep 25, 1885
delivered the opinion of the Court:
This is an action of. debt. The declaration contains but one count, of which the following is a copy:
“For that the said defendant heretofore, to-wit, on the 15th day of December, A. D. 1879, was and still is indebted to the plaintiff in the sum of $2307.90, for and on account of divers amounts of taxes, interest, penalties and costs due and unpaid, against divers tracts, pieces, parcels and lots of land of said defendant, situated in said county, and before said day forfeited to the State of Illinois, for non-payment of said taxes, interest, penalties and costs, which said real estate, together with the amounts for which the same was forfeited, as aforesaid, is as follows, to-wit: (Here the property is described.) Wherefore, and by force of the statute in such case made and provided, an action hath accrued to the plaintiff to have and demand of and from the said defendant the said several amounts of money, the same being; in the aggregate, the said sum of $2307.90, first above mentioned; yet the defendant, though requested, hath not paid the said several sums of money, nor any nor either of them, nor any part thereof, but fails and refuses so to do, to the damage of plaintiff of $2307.90, wherefore they sue,” etc.
The defendant pleaded nil debet. By agreement of parties the cause was tried by the court, without the intervention of a jury. The court found that the defendant was indebted to the plaintiff in the sum of $2016.59. Motions for a new trial and in arrest of judgment were made by the defendant, and overruled by the court, and the court thereupon rendered judgment for the sum so found to be due.
The rule is, if the declaration" omits to allege any substantial fact which is essential to a right of action, and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect. (Gould’s Pleading, chap. 10, sec. 22.) Chitty, in,his work on Pleadings, (vol. 1, 7th Am. ed. 712, *713,) says: “The expression, cured by verdict, signifies that the court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleadings, was duly proved at the trial. And such intendment must arise, not merely from the verdict, but from the united effect of the verdict, and the issue upon which such verdict was given. On the one hand, the particular thing which is presumed to have been proved must always be such as can be implied from the allegations in the record, by fair and reasonable intendment; and on the other hand, a verdict for the party in whose favor such intendment is made is indispensably necessary,” etc. It was essential to allege in the declaration the substantial fact not only that the defendant was the owner of the real estate against which the delinquent taxes are charged, but also the further substantial fact that he was such owner at the date such taxes became a charge against the real estate. (People v. Winkelman, 95 Ill. 412" date_filed="1880-06-14" court="Ill." case_name="People v. Winkelman">95 Ill. 412; Biggins v. People, 96 id. 383.) It can not be implied that the defendant was the owner of these lands at the time the taxes alleged became a charge against them, since they were at all times liable to be transferred by alienation, pursuant to voluntary and forced sales, and, therefore, title may have many times changed since that occurred. The mere fact of ownership creates no personal liability for the taxes due on the property, by the rules of the common law; and the statutory liability can not be extended to cases beyond its plain letter and spirit. The liability imposed by statute is not because of present ownership, but because of the failure of the individual to perform a statutory duty,—that of paying taxes on property owned by him on the first day of May. People v. Davis, 112 Ill. 272" date_filed="1884-09-27" court="Ill." case_name="People v. Davis">112 Ill. 272.
We think the declaration was clearly bad, and that its defect was not cured by the verdict, and, consequently, we must hold, as we do, that the court below erred in not arresting the judgment.
The judgment below is reversed, and the cause remanded to the circuit court, with direction to that court to arrest the judgment.
Judgment reversed.
The declaration was doubtless bad upon demurrer, but after pleading the general issue and consenting to go into a trial upon the merits under such a declaration, I do not think the defendant should now be heard to object to the sufficiency of the declaration, but that the verdict should be allowed to stand.