Lyle v. Jacques , 101 Ill. 644 ( 1881 )

Mr. Justice Sheldon

delivered the opinion of the Court:

In 1879 the assessor in the town of Coloma, in Whiteside county, assessed certain corn-cribs and corn contained therein, upon which assessment the county clerk extended the tax, and on the non-payment thereof John A. Lyle, the collector of said town, levied his warrant for the collection of the tax on certain property as the property of C. M. Jacques & Co., and advertised the same for sale. The complainants, Charles M. Jacques, John M. Jacques, Rufus H. Sheldon, and Rufus H. Sheldon, Jr., under the firm name and style of Jacques Bros. & Co., filed their bill to enjoin the sale of the property levied upon, and the collection of the tax. The circuit court decreed in favor of the complainants, and the defendant brings the case here on writ of error.

The main ground upon which relief is asked is, that the property assessed belonged to Stevens, Deane & Co., and should not have been assessed to complainants.

It appears that Stevens, Deane & Co. were grain and commission merchants, doing business in Chicago, and Jacques Bros. & Co. were a firm in the grain and stock business at Rock Falls, Whiteside county; that the corn in question was .purchased by Jacques Bros. & Co. with money furnished to them by Stevens, Deane & Co., in pursuance of an arrangement previously made, whereby the latter were to furnish money to purchase corn, and Jacques Bros. & Co. were to pay ten per cent interest for the use of the money until it was repaid. Besides this interest, Stevens, Deane & Co. were to receive one cent a bushel as commission in handling and selling the grain. Jacques Bros. & Co. were to pay all expenses, and have all the net profits, and bear the losses, if any, on the sale of the corn. The corn was to be turned over to Mr. Nance, a banker at Bock Falls, and Stevens, Deane & Co. were to have possession of it. Mr. Nance testifies that oh May 1, 1879, he held the corn in question, as custodian of Stevens, Deane & Co. The name of Stevens, Deane & Co. was placed on the cribs.

The transaction between these two firms, as it is thus presented, was a loan of the money with which the corn was bought, to Jacques Bros. & Co., and a security upon the corn for the repayment of the money, with interest. It was the corn of the complainants, subject to the lien on it of Stevens, Deane & Co. for the repayment of the money they advanced. Under this arrangement, too, between the two firms, this tax. would be an item of expense, with regard to the corn, which it would be for the complainants to pay,—it would go in reduction of the net profits which they were to receive, and they come unfavorably into a court of equity asking to have the tax shifted from themselves to Stevens, Deane & Co. There is no equitable ground of complaint that the assessment was made to the complainants.

It is said that the firm name of complainants is Jacques Bros. & Co., and that the assessor erred in assessing the property to them by the name of C. M. Jacques & Co. It appears that in doing their business complainants have used the three several names of Jacques Bros. & Co., C. M. Jacques & Co., and J. M. Jacques & Co., the explanation being that they kept separate accounts with their banker in doing their grain and stock business, and that in drawing checks different names were used to distinguish the accounts. Complainants claim that after September, 1879, they drew their grain checks in the name of C. M. Jacques & Co., and before that time in the name of J. M. Jacques & Co. or Jacques Bros. & Co. only. ° The assessor testifies that about the 1st of June, 1879, he informed C. M. J acques that he had assessed the corn' to C. M. Jacques' & Co.

It was early declared as the rule in this State, that equity will not interfere, by injunction, to restrain the collection of taxes because of errors in their assessment, where the tax is authorized by law, and it is assessed upon property subject to the tax, (Chicago, Burlington and Quincy R. R. Co v. Frary, 22 Ill. 34,) and this general rule has ever since been followed: Besides, it is a provision of the statute that “no error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof. Bev. Stat. 1874, p. 890, see. 191.

The three different names here, Jacques-Bros. & Co., J. M. Jacques & Co., and C. M. Jacques & Co., all mean the same— these complainants. There is no pretence that the tax or the assessment respects or concerns any other person than these, complainants, and Stevens, Deane & Co. The tax is a just one against the complainants, and making the assessment to them by the name of C. M. Jacques & Co., instead of Jacques' Bros. & Co., creates no. doubt that complainants were the persons intended, and is not a thing that affects the substantial justice of the tax itself, and at most is but an error in the assessment of such kind that, under the provision of the statute above cited, does not vitiate or affect the tax or assessment, and is no ground for equitable interference with the collection of the tax.

The bill states that some of the property levied on is the: separate property of Charles M. Jacques. This we conceive-furnishes no ground for enjoining the sale of such property at the suit of complainants. . It is a matter for the individual partner himself to complain of, and not these complainants, who sue only as a firm. The mere statement of the bill, that the horse-power—the property of Charles M. Jacques-^was in the possession of, and under the control of, complainants, we do not regard as showing that they had any substantial right in the property.

Some point is made in the argument that the corn-cribs were buildings situated on leased ground, and which were, for the purposes of taxation, real estate, and were not taxable in the town of Coloma as personalty, neither as realty, separate from the land,—that the corn-cribs were fixtures, and could not be sold by distress separate from the land or the leasehold estate in the same, and that the horse-power levied on by the collector was fastened to a large elevator building with iron bolts, and was a fixture, and could not be removed and sold in this proceeding,—which point we do not notice further, as the bill makes no case of such kind. The allegation of the bill in such regard is simply that the said corn-cribs and separator are the property of, and in possession of, Jacques Bros. & Co., and that the said horse-power, rod and levers are the property of Charles M. Jacques, but in the possession and under the control of complainants, and are a portion of the machinery used by complainants in running an elevator at Bock Falls, and that the separator is run in connection with the elevator, and that the removal of the horse-power and separator would irremediably injure complainants, by the stoppage of the elevator. These allegations, we consider, make no case for the consideration of such question of fixtures as is presented in the argument of appellee’s counsel.

It is objected that the collector’s notice of sale is defective, in that it does not name the place where the sale of the property would take place. The notice describes the property as standing on the north-east fractional quarter of section 28, describing it, and that the sale would be at Bock Falls, in Whiteside county. The evidence shows the north-east fractional quarter of said section 28 to be within the corporate limits of Bock Falls, and Bock Falls to be in extent one mile east and west, and one-half mile north and south, containing 1000 inhabitants. From the character of the property, the bulk of it not being movable, the reasonable understanding from the notice would be that it was to be sold at the place in Bock Falls where the property was described in the notice as “standing. ” ' We regard the potice as sufficient.

The decree will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.