| Ill. | Jun 14, 1880
delivered the opinion of the Court:
This was an action brought in the name of the people, against William Winkelman and Pauline F. Cox, under an act of the ligislature which authorizes an action to be brought to recover taxes due on forfeited property, in force July 1st, 1879. Laws of 1879, page 239. The declaration contained one count, as follows:
“ The People of the State of Illinois, the plaintiffs, complain of William Winkelman and Pauline F. Cox, the defendants, of a plea, that they render unto the said people the sum of $315.13, which they owe to, and unjustly detain from, the said people of the State of Illinois.
“For that whereas the said defendants heretofore, to-wit: on the 15th day of ¡November, A. D. 1879, to-wit: at the county aforesaid, were and still are indebted to the said plaintiffs in the sum of $315.13 for the amount theretofore due on property forfeited to the State of Illinois, according to the statute in such case made and provided, for non-payment of taxes, interest, penalties and costs, to-wit: on the following described real estate, situated in said county, to-wit: lot 146 in Scheel’s addition to Mascoutah, $315.13, and to be paid by the said defendants to the said plaintiffs when the said defendants should be thereunto afterwards requested; whereby, and by reason of the last mentioned sum of money being and remaining wholly unpaid, an action hath accrued to the said plaintiffs to have of and from the said defendants the said sum of $315.13, above mentioned. Yet the defendants, though often requested so to do, have not paid the said sum of $315.13, above demanded, nor any part thereof to the said plaintiffs, but to do so have hitherto wholly failed and refused and still do refuse, contrary to the statute in such case made and provided, to the damage of the said plaintiffs of $315.13, and therefore they bring this suit,” etc.
To the declaration a general demurrer was interposed, which the court sustained. The only question to be considered is, whether the averments of the declaration are sufficient to authorize a recovery against the defendants.
So much of the act of 1879 as has any bearing on the case under consideration is as follows:
“The county board may at any time institute suit in an action of debt in the name of the People of the State of Illinois, in any court of competent jurisdiction, for the whole amount due on forfeited property, * *■ * * and in any such suit or trial for forfeited taxes the fact that the real estate is assessed to a person, firm or incorporation shall be prima facie evidence that such person, firm or incorporation was the owner thereof and liable for the taxes for the year or years for which the assessment was made, and such fact may be proved by the introduction in evidence of the proper assessment book or roll or other competent proof.”
' Section 58 of the Revenue law, Rev. Stat. 1874,868, requires real estate to be assessed to the person who may be the owner thereof on the fiz-st day of May of each year; and by section 59 the owner on the fiz-st day of May in any year shall be liable for the taxes of that year. It is, therefore, manifest that the defendants could not be held liable in azi action at law or otherwise for the taxes in qzzestion, unless they were the owners of the property on the first day of May of the year or yeaz-s for which the taxes were assessed, as the liability depends upon ownership.
The declaration, however, no whez-e avers that the defendants were the owners of the property on the first day of May of the year or years for which the taxes were assessed. This fact is an essential element of the cause of action, and the rules of pleading require that it should be aven-ed in the declaration and proved on the trial. It is an elementary rule of pleading that the facts which constitute the cause of action should be averred. So far as appears from the averments of the declaration the land was never owned by the defendants, never in their possession, and never assessed in their names. If this be true,—if they never owned or possessed the land, and it was never assessed to them, we are aware of no rule of law under which the action could be maintained against them.
So far as any liability is imposed by the averments of the declaration, if these defendants can be held liable, any person Avho never saw or heard of the land may be sued and a recovery had against him.
We do not think the declaration sIaoavs a cause of action against the defendants, and for this reason the demurrer ay as properly sustained.
The judgment will be affirmed.
Judgment affirmed,