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was required for town purposes, and that the electors at the town meeting did not direct the raising of the money by a tax, but merely ratifled the attempted levy by the board of auditors, and therefore the levy was void.

Section 3, art. 4, c. 139, p. 1706, Hurd's Rev. St. 1899, authorizes the electors present at the annual town meeting to direct the raising of money by taxation for certain specified town purposes. The board of town auditors had no authority to levy any tax for such purposes, and the action of the board was a nullity. A tax must be levied by the authorities in whom the power to levy it is vested, and the power to raise money by taxation for the specified purposes is given by law to the electors assembled in the town meeting. A meeting must be properly convened, and the record must show, in some form, a substantial compliance with the law in levying the tax. It is not required, however, that any particular form of words shall be used in the record, and, if the substance of a vote of the electors at the town meeting directing the raising of money by taxation for lawful purposes appears, the fact that the board of auditors certified that the levy was required will not affect the validity of the tax. In this case the record shows that the $400 in the three separate items recommended by the auditors to be raised by taxation was allowed, and there is no objection that the purposes mentioned are not legitimate and within the require ments of the law. Neither is there any objection that the electors at the town meeting could not vote money for said purposes. We think the record amounts to a direction that the $400 should be raised by taxation for the specified purposes.

As to the remaining $1,000, the objections are that the electors at the town meeting had no authority to direct the issuing of bonds of the town, and that they did not attempt to levy a tax to pay bonds, but the action, at most, was a direction to issue bonds for $3,000, payable in one, two, and three years. It is true that the electors had no authority to direct the issuing of bonds, but it was within the authority of the board of town auditors to audit all charges and demands against their town and certify the same to the town clerk, to be certified by him to the county clerk. Hurd's Rev. St. 1899, p. 1715, c. 139, art. 13, §§ 3-7. The duty of passing upon claims against the town is imposed upon the board of auditors. Their certificate is the foundation of a levy of a tax to pay the same, and the electors at a town meeting cannot direct the levy of a tax for that purpose. People v. Chicago & Alton Railroad Co., 193 Ill. 364, 61 N. E. 1063. The board of auditors certified the amount which they required for the payment of bridge bonds, and there is no evidence that there were no outstanding bonds described in the certificate which the auditors might properly allow as a claim against the town. The action of the town meeting related to the maturity of the bonds, and the

levy seems to have followed their direction, so that the bonds would be paid in one, two, and three years, instead of a single payment. The fact that the vote of the electors was followed, although they had no authority in the matter, was not prejudicial to appellant, but rather to its benefit, in reducing the amount of the taxes. It must be conceded that the action of the hoard of auditors and of the electors at the town meeting were both irregular, but there was nothing more than irregularities not affecting the substantial justice of the tax. As to each portion of the tax there was, in substance, a levy by lawful authority, although the authorities in each case attempted to levy a portion of the tax which they had no power to levy. The objections to the town tax were properly overruled.

It was stipulated on the hearing that the school district was operating under a special charter, by which its power to incur indebtedness for building purposes is limited to $40,000; that the district had issued bonds to that amount, which were then outstanding and unpaid; and that the amount levied in 1902 against the property of appellant was more than enough to pay its proportion of the bonds then due, and interest on outstanding bonds, by the sum of $119.82. The objection to that tax is that the school district, having reached its limit of indebtedness, could not levy any tax for building purposes, and could only raise money by taxation to pay its indebtedness. We do not think that the charter would bear that construction. The limit is to indebtedness, and not to taxation, nor to the power of the district to erect buildings. The district could levy taxes for building purposes within the limit prescribed by the law, and devote the surplus, above meeting its bonded obligations on account of building, to building purposes. There is no claim that the tax was in excess of the rate authorized by law to be raised for building purposes, nor that it was to pay indebtedness beyond the limit. The court was right in overruling objections to this tax. The judgment is affirmed. Judgment affirmed.

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1. The record showed that appellant filed objections in writing to certain taxes; that there was no motion to strike the objections from the files, and no question was raised in any way as to appellant's right to object, but the cause was heard on the merits on such objections, and an appeal was allowed and duly perfected. There was no copy of the assessment list in the record showing to whom the property was assessed. Held. that the contention that the record did not show that appellant was interested in the property, so as to have a right to file objec

tions, could not be raised by appellee for the first time on appeal.

2. Where no motion is made to dismiss an appeal, appellee joining in error, and both parties filing briefs, and the case is submitted for decision on the errors assigned, the question whether the appeal was regularly taken does not arise on such submission, and can only be presented by a motion to dismiss the appeal.

3. On appeal from a tax judgment, where the bill of exceptions contains no exception to the final judgment of the court, and no propositions of law are submitted, the Supreme Court cannot review the question whether the judgment is supported by the evidence, or whether proper rules of law were applied by the court.

4. On appeal from a tax judgment, the prac tice is the same as in other cases tried by the court, and a party may except to a decision in receiving improper or rejecting proper testimony, or to the final judgment on the law and evidence, and may assign for error in the Supreme Court any ruling or decision so excepted

to.

5. Under Hurd's Rev. St. 1899, p. 1426, c. 120, 191, providing that a tax judgment shall be considered as a several judgment for each kind of tax or special assessment included therein, where evidence respecting certain taxes was admitted without objection, there being neither objection of appellant nor ruling by the court in the course of the hearing, and no question of law respecting such taxes was submitted, the only complaint being that the final judgment on the law and evidence was wrong, there was no exception to the judgment, which should be affirmed as to such taxes.

6. Under Hurd's Rev. St. 1899, p. 1487, § 119, requiring the commissioners of highways to ascertain how much money must be raised for the several purposes therein specified, and authorizing them to levy a tax to raise the same, not exceeding 40 cents on the $100 of the assessment, unless an additional amount, to be raised by a tax not exceeding 40 cents on each $00 of valuation, is authorized by the legal Tcters at the town meeting, on notice as therein required, the town board cannot grant such additional levy without such authority from the legal voters.

7. Under Hurd's Rev. St. 1899, c. 139, art. 12, 2, requiring the town clerk to record in the book of records of the town the minutes of every town meeting held therein, and every order or direction, and all by-laws, rules, and regulations made by any town meeting, the town record is the only competent evidence of the acts of the voters at such meeting, and parol evidence of a vote authorizing the levy of a greater tax than 40 cents on the $100 is inadmissible in proceedings to enforce the payment of taxes.

Appeal from Macon County Court; O. W. Smith, Judge.

Application by the people, on the relation of the county collector of Macon county, for judgment for certain taxes against the property of the Cincinnati, Indianapolis & Western Railroad Company. Judgment for relator, and defendant appeals. Affirmed in part.

George W. Fisher, for appellant. W. E. Redmon, State's Atty., and E. S. McDonald, for appellee.

CARTWRIGHT, J. The county court of Macon county overruled objections to the application of the county collector of said county for judgment against appellant's property for certain taxes of Decatur and Long

Creek townships, in said county, and entered judgment and an order for the sale of said property to satisfy said taxes. The only answer of counsel for appellee to the argument in support of the errors assigned is that such errors cannot be reviewed for three reasons: First, because only parties interested in lands against which judgment is asked for delinquent taxes may file objections thereto, and no proof was made in this case that appellant was interested in the property on which the taxes had been levied; second, that the bill of exceptions does not show that appellant deposited with the county collector a sum of money equal to the judgment and costs before its appeal was allowed, and therefore the appeal was not properly taken; and, third, because the bill of exceptions does not show any exception taken by appellant to the judgment of the court.

The first of said propositions is raised for the first time in this court. The record shows that appellant filed objections in writing to the taxes; that there was no motion to strike the objections from the files, and no question was raised in any way as to the right of appellant to object, but the cause was heard on the merits on such objections, and an appeal from the judgment was allowed by the court, and was duly perfected. On the hearing it was agreed by the parties that a prima facie case was made for the collector, and there is no copy of the assessment or delinquent list in the record showing to whom the property was assessed. For aught that appears, the lands were taxed in the name of the appellant, and in that respect the case is different from that of People ex rel. v. Quick, 87 Ill. 435, where the record showed that they were not taxed to the party objecting. The question cannot be raised for the first time on appeal in this court.

As to the second proposition, the record shows that appellant deposited the sum of $510.18 with the county collector, in compliance with the statute, for the purposes of the appeal. But, if that were not so, the objection comes too late. No motion was made to dismiss the appeal, but appellee joined in error, and briefs were filed by both parties, and the case was submitted for decision on the errors assigned. The question whether the appeal was regularly taken does not arise on such submission, and it could only be presented by a motion to dismiss the appeal. Wabash Railroad Co. v. People, 196 Ill. 606, 63 N. E. 1081.

The third proposition applies to some of the errors assigned, but not to all. The bill of exceptions contains no exception to the final judgment of the court, and there were no propositions of law submitted, so that we cannot review the question whether the judgment is supported by the evidence, or whether proper rules of law were applied by the court. The practice is the same as in other cases tried by the court, and a party may ex

cept to a decision of the court in receiving improper or rejecting proper testimony, or may except to the final judgment of the court upon the law and evidence, and may assign for error in this court any ruling or decision so excepted to. Bailey v. Smith, 168 Ill. 84, 48 N. E. 75. While there is no exception to the final judgment, the bill of exceptions shows that the appellant excepted to the ruling of the court in admitting the testimony of witnesses as to what occurred at the annual town meeting in the township of Long Creek with respect to the road and bridge tax. The evidence was admitted over the objection of appellant, and the ruling of the court was excepted to, and was properly preserved for review. If the decision of the court in admitting such evidence was erroneous, it was material and prejudicial error as to the road and bridge tax.

The statute provides that the judgment in a case of this kind shall be considered as a several judgment for each kind of tax or special assessment included therein. Hurd's Rev. St. 1899, p. 1426, c. 120, § 191. As to the town tax of Decatur township, the town tax of Long Creek township, and the district road tax there is no error assigned or argued which we are authorized to consider on the record presented here. All the evidence offered by appellant respecting those taxes was admitted without objection, and there was neither objection of appellant nor ruling by the court in the course of the hearing. No proposition of law respecting those taxes was submitted, and the only complaint is that the final judgment of the court upon the law and the evidence was wrong. There was no exception to that judgment, and as to those taxes it must be affirmed.

The township of Long Creek is under the labor system, and the error assigned relating to the admission of testimony affects $281.16 of the road and bridge tax of said township. The commissioners of highways met September 2, 1902, and the record of their meeting is as follows:

"Long Creek, Sept. 2, 1902, 78. "The Com. met at the town hall on the above date and made their levy, being sixty cents on the one hundred dollars ($100) of assessed value, which was granted by the town board. R. F. McDonald, "Wm. Sheets, "C. C. Cochran,

"Commissioners of Highways. "W. J. Hayes, Town Clerk."

That is the only record of any meeting for the levy of the road and bridge tax. The commissioners then made their certificate, which was presented to the board of supervisors at their meeting in September, 1902, as follows:

"Board of Comrs. of Highways, "Town of Long Creek, County of Macon, Ill. "We do hereby certify that we require the sum of dollars to be raised by a tax on the real, personal and railroad property in

the above town, for the making and repairing of bridges, the payment of damages by reason of opening, altering and laying out new roads and ditches, the purchase of the necessary material for building and draining roads and bridges, the pay of overseers of highways for the ensuing year, and for the payment of all outstanding orders drawn by the commissioners on their treasurer. Said amount being a levy of sixty cents on each one hundred dollars valuation according to the assessment of said town for the current year.

"Given under our hands this second day of September, 1902. Wm. Sheets, "C. C. Cochran, "R. F. McDonald, "Commissioners of Highways.

"Filed September 9, 1902.

"J. M. Dodd, County Clerk."

This certificate was made under the provisions of section 119 of the act in regard to roads and bridges in counties under township organization. Hurd's Rev. St. 1899, p. 1487. That statute requires the commissioners of highways to ascertain how much money must be raised for the several purposes in said section specified, and authorizes them to levy a tax to raise the same, not exceeding 40 cents on the $100 of the assessment. That is the limit, unless the legal voters present at the town meeting shall, upon notice given as therein required, authorize an additional amount to be raised by a tax not exceeding 40 cents on each $100 valuation. The statement in the record of the commissioners that the levy was granted by the town board had no effect for the reason that the town board had no authority to grant or authorize any levy. The record of the annual town meeting was in evidence, showing the proceedings at such meeting, and did not show any authority from the legal voters present at such meeting for any levy above the 40 cents fixed by the statute. The record did not show any notice that such a proposition would be voted on, as required by the statute. The court, against the objection of the appellant, allowed two witnesses to testify that there was a vote taken by the electors at the annual town meeting authorizing the levy of a greater tax than 40 cents on the $100, and in this ruling the court erred. The statute requires the town clerk to record in the book of records of the town the minutes of the proceedings of every town meeting held therein, and every or der or direction, and all by-laws, rules, and regulations made by any town meeting. Hurd's Rev. St. 1899, c. 139, art. 12, § 2. The town record was the only competent evidence of the acts of the voters at the town meeting, and what was done at such meeting could only be proved by such record. Fagar v. Rosier, 68 Ill. 84; People ex rel. v. Madison County, 125 Ill. 334, 17 N. E. 802; Chaplin v. Commissioners of Highways, 129 Ill. 651, 22 N. E. 484. The legitimate evidence

showed that the commissioners had no authority to levy a tax of more than 40 cents on $100 valuation.

The judgment is affirmed as to the town tax of Decatur township, the town tax of Long Creek township, and the district road tax of said Long Creek township, and it is reversed as to the road and bridge tax of said Long Creek township, and the cause is remanded to the county court. The parties will pay their own costs in this court. Affirmed in part, and remanded.

MARCHAL v. DAVIS et al. (Supreme Court of Illinois. Dec. 16, 1903.) TRUST DEEDS-FORECLOSURE-SUIT BY EXEC

UTORS APPEAL-RECORD.

1. Where, in a suit by executors to foreclose a trust deed executed to their testator, oral evidence showing that plaintiffs were executors of testator and that they were the owners of the trust deed was admitted without objection, and defendant filed a cross-bill making the executors defendants, defendant could not raise the objection that plaintiffs were not testator's executors.

2. Where, in a suit to foreclose a trust deed, the record showed that the trust deed and notes thereby secured were offered in evidence before the master and returned into court, and that the decree provided that they might be withdrawn by complainant, to be produced when requested, defendant, on appeal, could not complain that the trust deed and notes were not in the record.

Appeal from Appellate Court, First District.

Suit by Maria J. Davis and another, executors of John T. Davis, deceased, against

Jane Marchal and others. From a decree for plaintiffs, affirmed by the Appellate Court (107 Ill. App. 629), defendant Jane Marchal appeals. Affirmed.

Gearon & Gearon, for appellant. F. L. Salisbury, for appellees.

WILKIN, J. This is an appeal from the Branch Appellate Court for the First District, affirming a decree of foreclosure of the circuit court of Cook county upon a trust deed executed on June 10, 1890, by one Lilly Wiltberger to one John T. Davis to secure the payment of $12,000, due in five years after date, with interest at 6 per cent. per annum. At the maturity of this trust deed on June 10, 1895, by agreement of the parties the payment thereof was extended for a period of five years. In December, 1897, an agreement was entered into, in writing, between Lilly Wiltberger and the appellees herein, who were then the executors of the estate of the said John T. Davis, in which it was agreed that the appellees were to enter into the possession of the premises in question, rent the same, collect the rents, pay the insurance, taxes, and repairs, and apply any surplus upon the mortgage indebtedness. In pursuance of this agreement appellees entered into the possession of the premises and

continued therein until December, 1900, when Lilly Wiltberger conveyed all her right, title, and interest therein to the appellant, receiving therefor five acres of California land, valued at about $1,000. At the maturity of the debt secured by said trust deed or mortgage, default was made in payment, a bill of foreclosure was filed, and a cross-bill was filed by appellant. The cause was referred to the master, and upon his recommendation a decree of foreclosure was rendered for the sum of $14,877.91, together with $446.31 solicitor's fees. From this decree an appeal was prayed to the Appellate Court, where the decree of the circuit court was affirmed, and the cause is now brought to this court by appeal.

Three reasons are assigned by appellant why this decree should be reversed: (1) Because the trial court twice allowed the item of $360 for renting and managing said flat, first to the firm of Zanders & Co., and again to the so-called "janitor"; (2) for the reason that the appellees furnished no proof in the trial court that they were the executors of the estate of John T. Davis, deceased; (3) because the trust deed and the notes were never filed, either before the master or in the trial court, or in any way made a part of the record of the trial court.

As to the first assignment of error, the evidence shows that the property in controversy consisted of 12 flats and 3 storerooms in the city of Chicago. This property is what is known as "third-rate property." It was not in a first-class condition of repair, and did not contain such conveniences as would make it

rent to good advantage. During the time appellees were in possession they obtained about $85 a month rent. Many repairs were necessary, and they employed a real estate agent, who employed a janitor to assume charge of said premises and to aid in keeping the same rented and in repair. Considerable money was spent for these purposes, and complaint is made by appellant that the charges made for the repairs and for the service of the real estate agent and janitor are exorbitant. Appellant also claims that double charges were made for the management of said property by the real estate agent and by the janitor. From an examination of the evidence it will be found that appellees and their agents managed said property as well as could be expected, taking into consideration all of the facts and circumstances concerning the case. We do not think there is any error in the rulings of the chancellor or in his findings of fact.

As to the second error assigned, the appellant contends that proper proof was not offered before the master or upon the final hearing that the appellees had any right to sue as executors. An examination of the record will show that oral evidence was admitted showing that the appellees were the executors of the estate of John T. Davis, and that they were the owners of the trust deed

in question. Appellant also filed a cross-bill, in which she made said executors defendants. No objection was made to any of this testimony by the appellant. Had she desired to raise this question, objection should have been made to this testimony, so that other proof thereof could have been supplied, and by failing to do so she waived any rights which she might have had to here insist upon it.

As to the third error assigned, the appellant insists that the notes and trust deed were not offered in evidence before the master and were not filed in the trial court. An examination of the record, the evidence, and the decree will show that the trust deed and notes were offered in evidence before the master and returned into court, and the decree provides that these exhibits might be withdrawn by the complainant, to be produced at any time when requested. In taking this appeal it was the duty of appellant to make up the record, and, if she failed to include in said record all of the evidence offered in the case, she cannot be heard to complain of that omission here. We will assume that the documentary evidence offered sustains the decree of the trial court, and, if it does not, the only way appellant can take advantage of it is by including such evidence in the record, so we may inspect it and judge of its weight. If appellant had any cause for complaint on account of this omission, she could easily have obtained the production of the writings, and included them, or copies of them, in the record, and brought them to this court.

We are of the opinion there is no error in the decree of the circuit court and its affirmance by the Branch Appellate Court, and it will therefore be affirmed. Decree affirmed.

BUTLER v. BROWN et al. (Supreme Court of Illinois. Dec. 16, 1903.) HOMESTEAD-FORECLOSURE OF MORTGAGEREDEMPTION BY EXECUTION PURCHASERRIGHTS ACQUIRED-EQUITY RELIEF CONFORMITY TO PRAYER.

1. In the absence of proceedings under Hurd's Rev. St. 1901, p. 868, c. 52, §§ 10, 11, to set aside the homestead right, an execution sale of homestead property vests in the purchaser only the legal title to the excess of its value over $1,000.

2. An execution purchaser of property subject to a mortgaged homestead right can redeem the property from a foreclosure sale only under Hurd's Rev. St. 1901, p. 1093, c. 77, § 18, providing that one interested in premises through defendant may redeem within 12 months from sale under judgment or decree, by paying to the purchaser, or master in chancery for him, the sum for which the premises were sold; such redemption merely annuls the sale as provided in said section, and gives the execution purchaser no right against the homesteader to contribution to the mortgage indebtedness, or to subrogation to the benefits of the foreclosure.

1. See Homestead, vol. 25, Cent. Dig. § 384.

3. An execution purchaser of homestead property, a mortgage on which had been foreclosed, could not, on redemption from foreclosure, enforce his claim against the homestead by paying the homesteaders the value thereof, or having the same set off to them, under a bill against the homesteaders praying specifically for contribution, or, in default thereof, subrogation to the mortgagee's rights and for general relief, when he failed to accept the homesteaders' offer to release their claim on payment to them of the value of the homestead.

Appeal from Circuit Court, Fulton County; Jno. A. Gray, Judge.

Bill in equity by C. B. Butler against C. D. Brown and Orena Brown. From a decree dismissing the bill, complainant appeals. Modified and affirmed.

O. J. Boyer, for appellant. Chiperfield & Chiperfield, for appellees.

On

WILKIN, J. One of the appellees (C. D. Brown) was indebted to the appellant in the sum of $665, and executed his note therefor. This note was not paid at maturity, and judgment was rendered thereon, and execution issued upon the judgment, which was levied upon the homestead of appellees. February 23, 1901, the premises were sold by the sheriff of Fulton county for $852.32, the amount of the judgment and costs, and a certificate of purchase was issued by him to appellant. On June 12, 1902, the equity of redemption having expired upon that sale, the appellant took a sheriff's deed to the premises. Prior to the rendition of that judgment, appellees had executed a mortgage upon said lands to one Jane Hand for the sum of $1,000, releasing and waiving in said mortgage their right of homestead. That mortgage indebtedness was not paid at maturity, and a bill was filed to foreclose the same, a decree of sale rendered, and on August 19, 1901, the lands were sold to the said Jane Hand by the master in chancery for the sum of $1,272.71, and his certificate of purchase issued to her. On August 14, 1902, 15 days prior to the expiration of the year in which appellees had the right to redeem from said mortgage sale, the appellant redeemed the premises by virtue of his sheriff's deed, and paid to the master in chancery the sum of $1,347.38. At the May term, 1903, of the circuit court of Fulton county, he filed this bill for relief, setting up the above facts, and asking that the homestead rights of appellees be subjected to contribution to the mortgage indebtedness of said Jane Hand as redeemed by appellant from said mortgage sale, and that appellees be ordered to pay appellant the sum of $1,272.71, with interest from August 4, 1902, and in default of such payment that appellant be subrogated to all the rights and benefits of said foreclosure, and that all claims of appellees in said homestead premises be declared void, and for general relief. Appellees filed their answer to said bill, in which they denied the right of the complainant to the relief prayed, but offered that if he would pay them the sum of $1,000, the value of

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