Chicago Title & Trust Co. v. Drobnick

• Decision Date: 31 October 1960
• Docket Number: No. 35873,35873
• Citation: 20 Ill.2d 374,169 N.E.2d 792
• Parties: CHICAGO TITLE AND TRUST COMPANY, Trustee, Appellant, v. Joseph J. DROBNICK et al., Appellees.
• Court: Illinois Supreme Court

Page 792

169 N.E.2d 792

20 Ill.2d 374

CHICAGO TITLE AND TRUST COMPANY, Trustee, Appellant, v. Joseph J. DROBNICK et al., Appellees.

No. 35873.

Supreme Court of Illinois.

Oct. 31, 1960.

McClory, Bairstow & Anderson, Waukegan (Robert McClory and Donald M. Lonchar, Jr., Waukegan, of counsel), for appellant.

Mark Drobnick, Waukegan (Owen N. Price, Chicago, of counsel), for appellees.

HERSHEY, Justice.

Plaintiff brought an action in the county court of Lake County under section 255 of the Revenue Act of 1939 (Ill.Rev.Stat.1957, of the Revenue Act of 1939 (Ill.Rev.Stat.1957 chap. 120, par. 736) to compel the holder of a tax title to reconvey the premises to the plaintiff as alleged owner of the property. After a hearing the trial court entered a judgment denying plaintiff's application for reconveyance. A freehold being involved, plaintiff appeals directly to this court.

On October 15, 1958, the Chicago Title and Trust Company filed an application for reconveyance of property known as Lot 70 in Goldman's Greenbay Road Highlands in Lake County. The application alleged that Joseph J. Drobnick, then a bachelor, was the grantee in a tax deed to these premises issued by the county clerk of Lake County, dated December 16, 1933, and recorded December 19 of [20 Ill.2d 376] that year, that he subsequently conveyed the premises to the First National Bank of Waukegan as trustee, which bank as trustee later conveyed to Karl Drobnick as trustee, and Frances Drobnick as first successor in trust, all of whom were named defendants. Plaintiff alleged that none of the defendants were in possession or occupation of the premises, and, upon demand by plaintiff for reconveyance, they had refused tender of $571.95 offered by plaintiff and based upon an estimate prepared by the Lake County clerk. Plaintiff prayed for a reconveyance of the premises.

In answer, defendants denied that plaintiff was the owner of the premises, alleged they are in possession and took possession within the first year after the date of the tax deed, that plaintiff's action was barred by section 7 of the Limitations Act (Ill.Rev.Stat.1957, chap. 83, par. 7) or by section 6 of said act, that defendants have had adverse possession of the premises for over twenty years, that plaintiff was guilty of laches, and prayed that the application for reconveyance be dismissed. By amendment, the defendants alleged that plaintiff had not complied with the provisions of the Revenue Act.

After hearing, the court denied plaintiff's application for reconveyance, holding that plaintiff's cause was barred by section 7 of the Limitations Act.

Plaintiffs bring their appeal directly to this court, alleging that their proofs were positive and conclusive and warranted relief under the Revenue Act, that section 7 of the Limitations Act was not a bar to an application for reconveyance, and that the evidence failed to show that defendants had complied with the requirements of the Limitations Act.

A review of the evidence presented reveals that on December 16, 1933, a tax deed was issued to Joseph J. Drobnick for the premises in issue. The premises were and remained unimproved, covered with brush, grass and cattails, but in the spring or early summer of 1934 Joseph J. Drobnick put up signs on the premises offering it for sale, thereafter occasionally visited the property and put up new signs, and in 1955 caused the lot to be surveyed. In the spring or early summer of 1958 Joseph J. Drobnick and his sons erected a fence enclosing the premises, consisting of three wires and steel posts, following the surveyor's lot stakes.

The tax title holder at no time instituted proceedings to take legal possession of the property within one year after issuance of the tax deed. The tax title holder did, however, pay all subsequent taxes on the premises as they became due, from 1933 to the filing of plaintiff's action.

Plaintiff brings this proceeding pursuant to section 255 of the Revenue Act, providing: 'Whenever the grantee of a tax deed to real estate, or any one claiming thereunder, shall not be in possession or occupation of said premises so claimed and shall not take or institute proceedings in good faith to take possession within one year after the date of the first tax deed under his alleged tax title, or whenever the grantee of a tax deed to real estate or any one claiming thereunder shall suffer the same to be forfeited to the State or again sold for taxes or special assessments before he has completed the payment of all taxes and special assessments legally assessed thereon for seven consecutive years, then it shall be lawful for the owner of said real estate or his agent or attorney to pay or tender said tax title holder the amount of moneys paid out and expended by said tax title holder upon said sale with seven per cent (7%) interest per annum thereon, together with subsequent taxes and special assessments paid and the statutory fees and costs incurred, and that upon such payment or tender the said tax title holder shall reconvey the premises aforesaid to the owner thereof. The amount of such tender may be based upon an estimate prepared by the county clerk. Provided, however, that the county clerk shall not be required to include any subsequent taxes or special assessments in his certificate of redemption, not shall the payment thereof be a charge upon the land sold for taxes, unless the purchaser, assignee, or holder of the tax certificate of sale shall have filed with the county clerk, before redemption, an official, original or duplicate tax collector's receipt for the payment of such subsequent taxes or special assessments, and it shall be the duty of the tax collector to execute and furnish such duplicate tax receipts.'

Plaintiff contends that the tax title holder did not take possession of the premises within one year after the date of the tax deed, and hence...