County Collector, Application of

• Decision Date: 08 October 1971
• Docket Number: ALL--STATES,Gen. No. 11340
• Citation: 274 N.E.2d 164,1 Ill.App.3d 707
• Parties: Application of the COUNTY COLLECTOR for Judgment and Order of Sale against Lands and Lots returned Delinguent for Non Payment of General Taxes for the year 1963 and Prior Years. Walter T. MOREY, Plaintiff-Appellant, v.CORPORATION, an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 164

274 N.E.2d 164

1 Ill.App.3d 707

Application of the COUNTY COLLECTOR for Judgment and Order of Sale against Lands and Lots returned Delinguent for Non Payment of General Taxes for the year 1963 and Prior Years Walter T. MOREY, Plaintiff-Appellant, v. ALL--STATES CORPORATION, an Illinois Corporation, Defendant-Appellee.

Gen. No. 11340.

Appellate Court of Illinois, Fourth District.

Oct. 8, 1971.

John F. Dunn, Decatur, for plaintiff-appellant.

Burger, Geisler & Fombelle, Decatur, for defendant-appellee; Norman J. Fombelle, Decatur, of counsel.

SMITH, Presiding Justice.

Plaintiff appeals from a judgment of the circuit court of Macon County refusing to set aside a tax deed issued to the defendant corporation. Complaint was filed under Ill.Rev.Stat.1969, ch. 110, § 72, asserting that the proceedings whereby the tax deed was obtained were void because initiated on behalf of the defendant corporation by one who was not a licensed attorney and that notice was not given to the plaintiff who was the equitable owner of the property. We affirm.

Certain facts are not in dispute. Donald L. Kirkwood and Louise L. Kirkwood, his wife, were the record title owners of this property and sold it on contract to Charles Brawner and his wife. The county record show that Brawner was last assessed for the general real estate taxes on the property. The evidence shows that the plaintiff's father bought the contract from the Kirkwoods and they assigned it to him. The Kirkwoods also delivered to him a deed conveying the property from themselves to the Brawners. The elder Mr. Morey and the plaintiff, after his father's death, collected the contract payments from the Brawners. The plaintiff testified that he acquired this contract through his father's estate and that he was the owner of this real estate subject to the interest of Brawners and to the interest of the defendant under its tax deed. The Kirwood-Brawner contract was entered into somewhere about 1956. The plaintiff also testified that sometime after the tax deed was issued in August of 1967, he discovered that the property had been sold for taxes and caused an investigation to be made. Among the papers received from his father was a deed, blank as to grantee, which the Kirkwoods had apparently left with his father duly notarized by one Ayrlie Morris, a real estate broker, on the 31st day of December, 1956, but which was not filed for record until the plaintiff himself filed it on January 2, 1968. It is through this deed that the plaintiff bases his claim that he was the equitable owner of this real estate and should have had notice of the tax sale. It is further clear from the record that the plaintiff nowhere appeared in the record chain of title until the December 1956 deed was recorded in January of 1968.

In our judgment, the deed from the Kirkwoods to the plaintiff wherein no grantee was designated is a nullity. In Chance v. Kimbrell, 376 Ill. 615, 35 N.E.2d 48, it is stated: 'If the three deeds were blank as to grantee when defendant attached her signature they passed no title and are a nullity. Tucker v. Kanatzar, supra (373 Ill. 162, 25 N.E.2d 823); Donnelly v. Dumanowski, 329 Ill. 482, 160 N.E. 759; Osby v. Reynolds, 260 Ill. 576, 103 N.E. 556, Ann.Cas.1914D, 387.' Being a lawyer, the plaintiff knew or should have known that the deed in question was a nullity and conveyed to him no interest in this real estate and that there was nothing of record indicating any interest by him in the real estate. In this state of the record, at the time of the tax purchase and at the time of the tax deed, Walter T. Morey was a stranger to the record title.

Nevertheless the plaintiff contends that the agent of the tax purchaser by diligent search and inquiry should have readily ascertained from the Kirkwoods or from the Brawners--and the record indicates that he talked to both of them--that Walter T. Morey had some interest in the property. The evidence shows clearly that both the Kirkwoods and the Brawners were served with necessary notice. We think this case is basically controlled by Zeve v. Levy, 37 Ill.2d 404, 226 N.E.2d 620. In that case it was noted that in 1951, the court policy toward tax deeds changed. Prior to that date, the issuance of a tax deed was largely an administrative matter and the utmost and exacting observance of technical forms was required to produce a valid tax title. Thereafter in 1965, ch. 120, § 747, was enacted which provided that the 'tax deeds issued pursuant to this section shall be incontestable except by appeal from the order of the court directing the county clerk to issue the tax deed. This section shall be liberally construed so that tax deeds herein provided for shall convey merchantable title'. Following that enactment, the Supreme Court held that tax deed proceedings could not be collaterally attacked except as provided by § 72 of the Civil Practice Act and that relief under such section is available upon proof of fraud. Remer v. Interstate Bond Co., 21 Ill.2d 504, 173 N.E.2d 425. In Zeve, it is noted that the failure to receive notice of a tax deed proceeding does not per se entitle one to have the deed set aside nor does the fact that the respondent's agent could have made a more thorough inquiry and a more diligent search than he did necessarily establish fraud on the part of respondent in the absence of proof of wrongful intent or a pettern of deception. From the evidence here it is difficult to construct a wrongful intent or a pattern of deception when the agent of the respondent in this case relied upon the public record as to title. We think any further or additional inquiry on his part was not called for. Indeed, the trial court specifically found that there was no fraud in this transaction and on this record we are disposed to agree. If there is any pattern of deception, it is the documents and the conduct of the plaintiff, who, as well as his predecessor before him, patently maintained the utmost secrecy so far as the public record was concerned as to any interest in this property.

While the plaintiff complains of a failure to receive notice of the application for the tax deed, it is evident that the taxes had gone unpaid for several years and it is likewise clear that it was his own deliberate action in failure to record his contract documents or his negligent failure to do so that precluded receipt of a notice. All other interested parties of record were notified.

In 1967, the General Assembly amended § 747...