other defect rendering the tax wholly invalid,1 is always a good defense.

Payment of the tax before suit is a bar to a recovery;2 but payment under an illegal assessment, is no bar to a recovery, founded upon a subsequent valid assessment.3 Matters which could and should have been set up at an earlier stage of the proceedings and before action brought, are not, as a rule, available by way of defense to the action for the recovery of the tax.4

A party resisting judgment against his property for taxes, cannot raise an objection which does not apply to his property, but only to that of others who do not object;5 nor can he plead a set-off. Upon a suit for the collection of taxes, the validity

Adams v. Vicksburg Bank (Miss. 1890),
10 So. Rep. 102; State v. Central Pac.
R. Co., 7 Nev. 99; Western R. Co. v.
Nolan, 48 N. Y. 513.

A defective assessment roll may be introduced on the trial of a tax suit, to show that the taxes were not legally assessed; but it cannot avail in a collateral attack on a judgment. Eitel v. Foote, 39 Cal. 439.

1. See Otter Tail County v. Batchelder, 47 Minn. 512; St. Louis County v. Nettleton, 22 Minn. 356; St. Louis County v. Smith, 22 Minn. 356; Nashville v. Weiser, 54 Ill. 246; Blanchard v. Powers, 42 Mich. 619; Silsbee v. Stockle, 44 Mich. 561.

2. Chauncey v. Wass, 35 Minn. 1; McDougall v. Brazil, 83 Ind. 211; Driggers v. Cassady, 71 Ala. 529; Pope v. Macon, 23 Ark. 644; Craig v. Flanagin, 21 Ark. 319; Powers v. Penny, 59 Miss. 5; Davis v. Vanarsdale, 59 Miss. 367. And see supra, this title, Payment.

But the tender must be of the whole amount due. See Driggers v. Cassady, 71 Ala. 529. And see supra, this title, Payment.

3. North Carolina R. Co. v. Alamance, 82 N. Car. 262; Wilmington R. Co. v. Brunswick County, 72 N. Car. 10; Wilmington Bridge Co. v. New Hanover Co., 72 N. Car. 15; Richmond, etc., R. Co. v. Brogden, 74 N. Car. 707; Wayne v. Savannah, 56 Ga. 488.

4. See Mix v. People, 116 Ill. 265; English v. People, 96 Ill. 566; Lehman v. Robinson, 59 Ala. 220; People v. Whyler, 41 Cal. 351; Rockland v. Rockland Water Co., S2 Me. 188; Boothbay v. Race, 68 Me. 351; State v. Sadler, 21 Nev. 13; Matter of McLean (Supreme Ct.), 6 N. Y. Supp. 230.

It is no defense to an application for judgment against delinquent lands,

that the taxes are high, where there is no unfairness or injustice in the assessment, and no inequality in the taxes imposed. Buck v. People, 78 Ill. 560; Spencer v. People, 68 Ill. 510.

In Houston County v. Jessup, 22 Minn. 552, it was held that the objection that the county commissioners did not designate the paper in which the list of taxes should be published, was not a proper matter for answer in proceedings to enforce the payment of a tax; but should be made by objection on motion to dismiss the proceedings before answering.

In Clayton v. Chicago, 44 Ill. 280, it was held that the question as to whether the collector gave notice that he would levy on personal property in default of the tax, and as to the sufficiency of the notice if given, is wholly immaterial, on an application for judgment against lands for taxes.

In Lehman v. Robinson, 59 Ala. 220, it was held that where complaint is made that an assessment is excessive or illegal, it should not be collected by coercive process until the county commissioners have acted in the case, but upon their failure to do so, the courts may be called upon to redress the

wrong.

5. Buck v. People, 78 Ill. 560; Chiniquy v. People, 78 Ill. 570; Gage v. Busse, 7 Ill. App. 433.

Thus, a misdescription or defective description of a tract of land by an assessor, will not affect the tax imposed upon other tracts. Buck v. People, 78 Ill. 560. Nor will the omission of other property in the same jurisdiction. Spencer v. People, 68 Ill. 510.

6. Morris v. Talnier, 39 La. Ann. 47; Wayne v. Savannah, 56 Ga. 448; State 7. Baltimore, etc., R. Co., 34 Md. 344; Apperson v. Memphis, 2 Flip. (U. S.)

of the organization of the municipality imposing the tax cannot be attacked.1

In some cases, statutes of limitation have been held to apply to actions for the recovery of taxes;2 while in others, it has been held that, though the statute applies to suits by municipalities, it does not apply to an action by the state.3 On the other hand, it has been held that actions for the recovery of taxes are proceedings for the enforcement of a public right, against which no statute of limitation runs.4

(d) Application for Judgment.-An application for judgment must be made at the time named in the notice; previous to that time the

In Dorsett v. Brown, 83 Ga. 581, it was held that where tax executions belong to the tax collector after the expiration of his term of office, they are subject to existing equities between him and the taxpayer, and he or his personal representatives may, in a proper case, be perpetually enjoined from enforcing them.

1. See Wabash, etc., R. Co. v. Drainage Dist., 134 Ill. 384; St. Louis v. Shields, 62 Mo. 247; Mendenhall v. Burton, 42 Kan. 570; Briggs v. Whipple, 7 Vt. 15; Burt v. Winona, etc., R. Co., 31 Minn. 472.

Nor can the regularity of the collector's election or appointment_be_ questioned. Odiorne v. Rand, 59 N. H. 504; Law v. People, 87 Ill. 385; Sullivan v. State, 66 Ill. 75.

2. See State v. Yellow Jacket Silver Min. Co., 14 Nev. 220; Perry County v. Selma, etc., R. Co., 58 Ala. 546; Burlington v. Burlington, etc., R. Co., 41 Iowa 134; Rich v. Tuckerman, 121 Mass. 222; Condon v. Maynard, 71 Md. 601; Gunther v. Baltimore, 55 Md. 457; Redwood County v. Winona, etc., L. Co., 40 Minn. 512; San Francisco v. Luning, 76 Cal. 610; Los Angeles County v. Ballerino (Cal. 1893), 32 Pac. Rep. 581; Brown v. Porter, 7 Humph. (Tenn.) 373; San Francisco v. Jones, 20 Fed. Rep. 188.

The statute runs from the time the tax becomes due and payable. Condon v. Maynard, 71 Md. 6oi.

A promise of payment takes a tax out of the statute, the same as in the case of an ordinary claim. Perkins v. Dyer, 71 Md. 421.

In the absence of a Statute of Limitations, applicable to a claim for taxes due, there is no bar to such claim, short of the presumption of payment after the lapse of twenty years. Perry County v. Selma, etc., R. Co., 58 Ala. 546.

In Los Angeles County v. Ballerino (Cal. 1893), 32 Pac. Rep. 581, it was held that a cause of action for delinquent taxes is not within the Statute of Limitations with reference to contract obligations, but must be brought within the time provided for action on a liability created by statute.

Penalties imposed for delay in the payment of taxes, fall within statutes of limitations applicable to the recovery of penalties in ordinary actions. Louisville, etc., R. Co. v. Com., 85 Ky. 198.

Statutory provisions that the administrator shall not be held to answer to the suit of any creditor of the deceased, unless it is commenced within two years from the time of his qualification, are applicable to suits for taxes. v. Tuckerman, 121 Mass. 222.

Rich

3. See Brown v. Painter, 44 Iowa 368; Des Moines v. Harker, 34 Iowa 84; State v. Henderson, 40 Iowa 242; Jefferson v. Whipple, 71 Mo. 519.

4. Greenwood v. La Salle, 137 Ill. 225. And see McKenzie v. Wooley, 39 La. Ann. 944; Reed v. His Creditors, 39 La. Ann. 115.

In Mercier v. New Orleans, 42 La. Ann. 1135, it was held that a judgment for city taxes is not a money judgment, does not possess the attributes of an ordinary judgment, and is not covered by the prescription of judgment defined in the civil code.

In Leeds v. Hardy, 43 La. Ann. 810, it was held that the securities for the payment of city taxes are prescriptible, though the tax itself is imprescriptible.

court has no jurisdiction.1 The statute must be complied with in the application for and rendition of judgment.2

(5) The Determination—(a) In Actions in Personam.—An ordinary money judgment terminates a personal action for taxes.3 This judgment is enforced, like an ordinary judgment, by execution.4 No additional force attaches to the judgment from its having been rendered for taxes.5

(b) In Actions in Rem. In actions in rem the judgment 6 and execution are against the property itself. To enable the court to render judgment, the record must affirmatively show facts necessary to the jurisdiction.8

The form of the judgment, and its recitals, when prescribed by statute, must be substantially complied with; but the judg

1. Pickett v. Hartsock, 15 Ill. 279; Brown v. Hogle, 30 Ill. 119; Spurlock v. Dougherty, 81 Mo. 171. And see People v. Nichols, 49 Ill. 517; Kinney v. Forsythe, 96 Mo. 414.

Up to that time, the owner has a right to pay the taxes charged upon the property. Pickett v. Hartsock, 15 Ill. 279.

In Chouteau v. Hunt, 44 Minn. 173, it was held that the service of the notice and delinquent list is complete with the last publication, and that jurisdiction then attaches, and that therefore a judgment entered twenty days after the last publication is not void, though erroneous. See also Kipp v. Collins, 33 Minn. 394.

Application at Subsequent Term.-In Beers v. People, 83 Ill. 488, it was held that under the Illinois statute, the collector may apply for judgment against lands for taxes at the May term; and if for any cause it is not made, or judgment is not recovered at that term, he may apply at any subsequent term. See also People v. Nichols, 49 Ill. 517. 2. Brown v. Hogle, 30 Ill. 119; Spell man v. Curtenius, 12 Ill. 409; Hough v. Hastings, 18 Ill. 312; Marsh v. Chesnut, 14 Ill. 223; Hope v. Sawyer, 14 Ill. 254; Dukes v. Rowley, 24 Ill. 210; Essington v. Neill, 21 Ill. 139; Morgan v. Camp, 17 Ill. 175; Lane v. Bommelmann, 21 Ill. 143.

Where a decree is entered without authority, it cannot be subsequently validated by entering the affidavit. Simms v. Greer, So Ala. 263.

3. Kentucky Cent. R. Co. v. Com., 92 Ky. 64; Greenwood v. La Salle, 137

III. 225.

4. Byrne v. La Salle, 123 Ill. 581. The judgment in a personal action for a tax when obtained, is purely

personal, and may be levied on any property of the defendant, liable to execution. Greenwood v. La Salle, 137 Ill. 225; Douthett v. Kettle, 104 Ill. 356.

5. Kentucky Cent. R. Co. v. Com., 92 Ky. 64; Byrne v. La Salle, 123 Ill. 581; Greenwood v. La Salle, 137 Ill. 225.

Such a judgment cannot be satisfied by a sale as under a judgment in a proceeding in rem. Byrne v. La Salle, 123 Ill. 581.

6. Allen v. McCabe, 93 Mo. 135; Pidgeon v. People, 36 Ill. 249. And see St. John v. East St. Louis, 50 Ill. 92; Chesnut v. Marsh, 12 Ill. 173.

In Chesnut v. Marsh, 12 Ill. 173, it was held that a judgment for taxes cannot be impeached because rendered against the owner as well as against the land; that part of it charging the owner will be regarded as surplusage.

7. Allen v. McCabe, 93 Mo. 138. And see Brown v. Joliet, 22 Ill. 125; Pidgeon v. People, 36 Ill. 249.

8. Carlisle v. Watts, 78 Ala. 486; Driggers v. Cassady, 71 Ala. 529; Gunn v. Howell, 27 Ala. 663; 42 Am. Dec. 785; Territory v. Delinquent Tax List (Arizona, 1887), 21 Pac. Rep. 888; Young v. Lorain, 11 Ill. 637; Kinney v. Forsythe, 96 Mo. 414.

Where power to maintain an action for taxes is conferred upon a court of special and limited jurisdiction, the powers conferred are special and limited; and to sustain a decree, the record must affirmatively show jurisdiction both of the subject-matter and of the person. Carlisle v. Watts, 78 Ala. 486.

9. Kipp v. Collins, 33 Minn. 394; Gilfillan v. Hobart, 34 Minn. 67; Chesnut v. Marsh, 12 Ill. 173; Mix v. People, 81 Ill. 118. And see Allen v. McCabe, 93 Mo. 138; German-American Bank v. White, 38 Minn. 471.

ment may be amended as to matters of form and immaterial errors.1

The judgment must be certain, and must correspond in amount with the delinquent tax specified in the return, notice, or complaint. The amount for which the judgment is rendered must appear from the judgment itself, without reference to other sources.4

The judgment must describe the lands against which it is rendered.5 Usually the description must conform to that of the

assessment and other previous proceedings. Although not technically correct, if the description is that by which the land is commonly known, it may be sufficient.2 Latent ambiguities may be cured by extrinsic evidence.3

Where the interests of different persons have been assessed separately, and some have paid the taxes as assessed, the judgment should designate the different interests.4 The judgment should be against each lot or parcel of land assessed, and not against several parcels in the aggregate,5 though it has been held that a defect in this respect does not go to the jurisdiction.