Opinion of the Court.

"John P. Cabanne, complainant, v. Same, defendants. In Chancery."

"Ordered, That the same notice be given in the two last cases as in the one immediately preceding."

At the October term, 1822, the record shows the following:

"This day came the complainant by his counsel, and it appearing to the court that the order made at the last term for the appearance of the defendants in this cause has been published three weeks, successively, in the Edwardsville Spectator, as required by said order, and the defendants not having entered their appearance herein or answered the bill of complaint, on motion of complainant's counsel, it is ordered by the court that said bill be and the same is hereby taken for confessed against them."

The act of 1819, providing for service upon non-residents, in force at the time these proceedings were had, declares that, if any defendant in chancery reside out of the State, or can not be found to be served with process of subpoena, or abscond to avoid being served therewith, public notice shall be given to the defendant, signed by the clerk, in any newspaper printed in this State, or in any adjoining State or territory, as the court may direct, that unless he appear and file his answer by a day given him by the court, the bill shall be taken pro confesso.

What the form of the notice published was, does not appear, nor is it material, as no form is prescribed. The nature of the notice seems to have been left, in a great measure, to the discretion of the court. The court, by the decree, found that notice had been given as required by the order of the court, and when the question arises collaterally, as it does here, the presumption of law is, that the notice given the defendant was sufficient.

The court that rendered the decree that notice had been given as required, was a court of general jurisdiction, and the presumption of law is, the court had jurisdiction of the

Opinion of the Court.

parties, and the decree valid, until the contrary is made to

appear.

It is said the children and heirs at law of Wm. M. O'Hara were not notified or brought into court by their proper names; that fact, however, does not appear from the record. The defendants to the bill were Susan O'Hara and others, the widow and heirs at law of Wm. O'Hara, deceased.

At the first term of court at which the bill was pending, the court found the fact, as shown by the decree, that the defendants were not inhabitants of the State. An order based upon this finding was entered requiring the defendants to be notified by publication in a certain paper. At the next term of the court it was a question for the court to determine whether notice had been given the defendants, from the proof then produced.

The court heard the proof, and found and adjudged that the required notice had been given. What the notice contained the record does not disclose, but when the question arises collaterally, the legal presumption is, that the notice which the court passed upon contained every fact necessary to give the court jurisdiction of the persons of the defendants. As was said in Reddick et al. v. The State Bank, 27 Ill. 145, "It is to be presumed that no court will state of record the existence of facts which had no existence, or pass a decree, or render a judgment, unless proof of service or notice were actually produced. The record, therefore, stating such facts, and nothing to the contrary appearing, it should be received as evidence of their existence." See, also, Galena and Chicago Union Railroad Co. v. Pound, 22 Ill. 399; Rivard v. Gardner, 39 Ill. 129; Moore v. Neil, 39 Ill. 256.

The decree of foreclosure sought to be impeached was entered October 7th, 1822, by the terms of which the minor defendants had the right, at any time within one year after they became of age, to appear and contest the decree.

Under this decree the mortgaged lands have been sold and passed into the hands of actual settlers, on the faith of the

Opinion of the Court.

solemn adjudication of a court of general jurisdiction. Purchasers have improved and rendered the lands valuable, and for more than half a century no effort has been made by the heirs of the mortgagor, or those claiming under them, to impeach the validity of the decree of sale. Under such circumstances, to permit the effect of a judicial record to be overturned without the most cogent reasons, would, in effect, open a wide door to fraud and speculation, destroy all confidence in judicial sales, and remove that protection from innocent purchasers which it has been the doctrine of all courts to uphold and sustain.

In Voorhees v. The Bank of the United States, 10 Peters, 449, the court, in discussing a question of this character, said, "that some sanction should be given to judicial proceedings, some time limited beyond which they should not be questioned, some protection afforded to those who purchase at sales by judicial process, and some definite rules established by which property thus acquired may become transmissible with security to the possessors, can not be denied."

The objection that the decree does not describe the lands is not well taken. The decree directs the sale of the mortgaged premises mentioned and described in the complainant's bill of complaint, being sixty-six quarter sections of land.

By referring to the mortgages, which were made a part of the bill, an accurate description of the lands is found.

It was not at all necessary that a formal description of the lands should be inserted in the decree.

There is no uncertainty as to the lands decreed to be sold or that were actually sold.

The land in controversy is embraced in one of the mortgages described in the bill. It is contained, also, in the commissioner's report of sale and deed.

The mortgages, and proceedings in the foreclosure of the same in the circuit court of Pike county, and commissioner's deed, which the court excluded, should have been admitted

76 184 58a 107

Statement of the case.

in evidence, and upon the evidence introduced and offered, the judgment should have been entered in favor of appellant. The judgment will be reversed, and the cause remanded for another trial consistent with this opinion.

Judgment reversed.

THE BOARD OF TRUSTEES OF THE ILLINOIS INDUSTRIAL

UNIVERSITY

v.

THE BOARD OF SUPERVISORS OF CHAMPAIGN COUNTY.

1. TAXATION-Industrial University exempt from. Lands held by the trustees of the Illinois Industrial University belong to and are under the control of the State, when it is disposed to exercise the power, and are therefore exempt from taxation, under the act of 1853, relating to revenue.

2. INDUSTRIAL UNIVERSITY—State control of. Although the State has created a body corporate to control the Illinois Industrial University, and its property and affairs, yet the State still retains the power of appointing its trustees, and may, through other agents than the trustees, sell and dispose of the property of the institution, or amend or repeal the charter, as public policy or the interest of the university may require.

APPEAL from the Circuit Court of Champaign county; the Hon. A. J. GALLAGHER, Judge, presiding.

This was an application for judgment against certain real estate of the Illinois Industrial University, for taxes.

The case was submitted and heard in the circuit court, upon the following agreed statement of facts: That the lands were assessed for the year 1870 in the sum of $228.52, State, county, road, bridge and school taxes; that the same remained unpaid; that legal notice of the application for judgment had been given; and that the lands had been returned by the collector as delinquent.

On the part of the defendants it was agreed, that the lands were a part of those referred to in section 12 of the act to

Opinion of the Court.

charter the Illinois Industrial University, and that they were conveyed to the university on the acceptance of the charter, and that since their conveyance, in 1867, the lands had been regularly rented, and the rents arising therefrom used as funds of the university for the payment of current expenses. The question submitted was, whether these lands were liable to be taxed for the year above named. The court below held that they were, and rendered judgment against the lands for $228.52, and for costs. The defendants appealed..

Messrs. CUNNINGHAM & WEBBER, for the appellants. Mr. M. B. THOMPSON, State's Attorney, for the appellees. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This is an appeal from a judgment for taxes of 1870, assessed against lands belonging to appellants, and conveyed to them in consideration that the Industrial University should be located at Urbana, in this State. It is claimed that the title to these lands is in appellants, in trust, and that the institution and its property is under the control of the State, and is held in trust for the State; that, as it is the property of the State, it is exempt from taxation, and, being exempt, the judgment against the lands is erroneous, and should be reversed.

It is provided by section 3, article 9, of our constitution, that the property of the State, counties, etc., may be exempted from taxation; but such exemption shall be only by general law. And the third section of the revenue law of 1853 exempts real and personal property belonging to the State. (Laws of 1853, sec. 3, p. 5, 37.) And we have failed to find that this enactment has been subsequently changed, but still remains in full force.

The only question, then, presented by this record, is, whether this is the property of the State. If so, then it is exempt from taxation. To determine that question, we must turn to the act which brought this institution into existence.