delivered the opinion of the court.
Appellant has not attempted to comply' with rule 16 of this court, requiring a complete index to the abstract, alphabetically arranged, giving the page where each pleading, exhibit or document, and the names of the witnesses, with the pages where the different examinations of the several witnesses may be found, and we would be justified in dismissing the appeal for that reason, but we have overlooked this neglect.
No ruling of the trial court upon the admission or rejection of evidence is presented, or called to the attention of this court by the brief and argument filed by appellant. Counsel say: “appellant also insists it was error for the lower court to permit a recovery upon the common counts. The claimed liability was purely statutory, and should have been declared upon as such.” Nothing further is said which questions the sufficiency of the declaration, neither does any proposition of law presented by appellant to the trial court show that the sufficiency of the declaration to sustain the judgment upon the evidence was called to the attention of that court. The motion to exclude the testimony was not renewed at the close of the testimony. The propositions of law presented by appellant are such as would be requested to be held, had there been a special count setting up an erroneous tax sale and subsequent payment of (taxes. We conclude that appellant was satisfied, that the statute providing that money paid, as this is claimed to have been paid, may be recovered with interest, if at all, “as money paid for owner’s use,” and that the ease.might be disposed of on its merits, upon the declaration containing a general declaration concerning a statutory liability inserted in the common counts, together with the bill of particulars, which gave notice of the grounds of appellees ’ action.
The only question argued is, can the judgment be sustained on the proof 1 The record shows that the appellant is the owner of a part of block 24, in Bowen’s addition to Joliet, described by metes and bounds, and has occupied said premises for several years. That it was assessed to W. N. Moore, who was the president of appellant company, as lot 6 in the Assessors’ subdivision of part of block 24, Bowen’s addition to Joliet. It is shown that there is no plat of any such subdivision known or recorded. It was proved by the assessor that the property attempted to be assessed was under a void description sold for non-payment of taxes, and was the real estate owned and occupied by appellant and upon which its plant was -located. The taxes were paid for several years prior to 1897, sometimes in the name of appellant, at other times in the name of W. N. Moore, who was an officer of the appellant company. The property under a void and uncertain description was sold for taxes of 1897, on July 2, 1898, as assessed, and appellees became the owners of the certificate by assignment. Subsequently, and before the discovery that the description was erroneous, appellees, the owners of the tax certificate, on May 23,1899, paid $540.19, the taxes on the premises for the year 1898, and on April 1, 1900, they paid the taxes for 1899, amounting to $655.20.
Section 213 of chapter 120 B. S. entitled Bevenue, provides “"Whenever it shall be made to appear to the satisfaction of the county clerk that any tract or lot was sold, and that such tract or lot was not subject to taxation, or upon which the taxes or special assessments had been paid previously to the sale of said lot, or arises from a double assessment, or that the description is void for uncertainty, he shall make an entry opposite to such tract or lots in the sale and redemption record, that the same'was erroneously sold and such entry shall be prima facie evidence of the fact therein stated, and unless such error is disproved the county collector shall, on demand of the owner of the certificate of such sale, refund the amount paid and cancel such certificate as far as it relates to such tract or lots.” The following section of the same chapter (section 214) provides: “When the purchaser at such erroneous sale, or any one holding under him, shall have paid any tax or special assessment upon the property so sold, tohich has not been paid by the> owner of the property, he shall have the right to recover from the oivner the amount so paid, with ten per cent, interest, as money paid for the owner’s use.” Appellant contends that a purchaser at a tax sale and who pays taxes thereafter, takes his chances on getting large returns, if the proceedings leading up to and including the deed are in conformity with the statute. That the rule of caveat emptor is peculiarly applicable in such cases because of the large anticipated profits. On the other side, appellees contend that the statute gives them a right to the repayment of the taxes paid by them with interest, if the description of the property sold is. so uncertain that it is void. Each party presented propositions giving their respective theories. The court held propositions to be the law, that there could be a recovery of money paid, where the description of the premises was void for uncertainty, and denied the propositions asked by appellant, that the rule of caveat emptor applied. Section 213 does not give any right to the tax sale purchaser against the owner of the premises, but only to get his refund from the county collector of the money paid for the tax certificate. The section also provides that the entry by the county clerk on the tax sale book shall be prima facie evidence of the fact there stated. Appellees did not rely on this entry made by the county clerk, but proved by other evidence that appellant was and is the owner and occupant of the property; its legal description, and that description as given in the assessment and tax sale certificate, did not describe the property attempted to be described. . They proved there was no such subdivision of said block; that appellees, while they were owners of the tax sale certificate, had paid the taxes on the property subsequent to such sale, and that appellant, the owner, had not paid the said taxes. Section 214 provides for the repayment by the owner of all taxes paid by a tax sale purchaser on the premises sold to him, subsequent to a sale of erroneously described property, with ten per cent, interest, if the taxes have not been paid by the owner. The statute of 1845 provided for the making of the entry in the case of an erroneous sale by the clerk of the county commissioners’ court on the tax sale book at any time before the execution of the deed-. Section 91, Revenué Act of 1845. The statute, of 1858 provided for the same entry even after the deed was issued, on the return of the deed to the county clerk. The present statute enacted in 1871 (Statutes of 1871, page 51, sections 213 and 214) and which has been in force ever since, eliminated all reference to time, and is litvhenever it appears,” etc., and section 214 is, “when the purchaser at such erroneous sale,” etc. We think this statute must be given the effect of the clear and unambiguous language it contains. While tax gatherers and tax sale purchasers may not be regarded with favor by taxpayers, the law encourages the payment and collection of taxes. The statute should not be given such a construction as to encourage the evasion of the payment of taxes. Had appellant paid its taxes as the law demands, it would have no occasion to complain of the heavy percentage it now has tó pay. The description in the tax sale being void for uncertainty, therefore, judgment was properly rendered for the taxes paid in 1899 and 1900 and interest, and the rulings on the propositions held to be the law, were consistent with the findings and the law, and those refused were properly held not to be the law. The judgment is therefore affirmed.
Affirmed.
Mr. Presiding Justice Dibell, having presided at the trial of this case in the lower court, took no part in its decision here.