County Collector, Application of
| Decision Date | 15 November 1965 |
| Citation | 241 N.E.2d 641,101 Ill.App.2d 1 |
| Parties | Application of the COUNTY COLLECTOR for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1960 and Prior Years. On Appeal of Ella Louise CONWAY, as mother and next friend of Dennis Conway, Vernice Marie Conway, Richard Edward Conway and Helen Conway, minors; and Samuel Macklin, individually and as Executor of the Estate of Helen D. Thompson, Deceased, Petitioners-Appellants, v. HAWTHORN, LANE AND COMPANY, Respondent-Appellee, and Petronela Srebalus, Wesley Young, Louise Young, and Exchange National Bank of Chicago, as Trustee under Trust Agreement dated |
| Court | United States Appellate Court of Illinois |
Benjamin A. Rasky, Chicago, for appellants.
Allan L. Blair, Chicago, for respondent-appellee Hawthorn, Lane and Co.
A. Edmund Peterson and Leonard Higley, Chicago, for respondents-appellees solely in Appellate Court, Petronels Srebalus, Wesley Young, Louise Young, Exchange Nat. Bank of Chicago, as trustee under Trust No. 18408, and Illinois Fed. Sav. & Loan Assn. of Chicago, Allan L. Blair, Leonard Higley, Bruce M. Buyer, Chicago, of counsel.
This is an appeal by petitioners from an order entered on October 31, 1966, dismissing their petition under Section 72 of the Civil Practice Act, Ill.Rev.Stat.1967, c. 110, § 72, to vacate an order entered on December 7, 1964, directing the issuance of a tax deed. Petitioners contend that because Helen Conway, the minor daughter of Ella Louise Conway, and Samuel Macklin were not given notice of the tax deed proceedings and because no guardian ad litem was appointed for the minor parties to the proceedings, the tax deed order should have been vacated. The facts follow.
The property involved is located at 7217 South Perry Avenue in Chicago and is improved with a two story brick building. It was owned by Helen Thompson and Eugene Tate as tenants in common until Mrs. Thompson died in 1959. By her will she devised a life estate in her one-half interest to Ella Conway and the remainder to Ella's children, Dennis, Vernice Marie and Richard Edward, but not the before mentioned Helen Conway. She also bequeathed Five Dollars to Samuel Macklin and named him executor of her estate. Tate was a party to the tax proceedings, but has not appealed.
On February 5, 1962, the County Collector filed an application for a judgment and order of sale for delinquent real estate taxes on the property. The order was entered on February 16, 1962, and on March 22, 1962, the property was sold at public auction to one M. Andrew. Pursuant to Section 263 of the Revenue Act the period of redemption was extended to November 30, 1964. (Ill.Rev.Stat., ch. 120, § 744 (1967).) On August 6, 1964, M. Andrew filed a petition for the issuance of a tax deed and thereafter served notice pursuant to Sections 263 and 266 of the Revenue Act on all the petitioners except Helen Conway (who was not named as a child of Ella Conway in the estate of Helen Thompson) and Samuel Macklin, whom it is alleged the process server was unable to locate after diligent inquiry. On November 30, 1964, M. Andrew sold her certificate to Hawthorn, Lane and Company.
On October 18, 1966, the petitioners filed their petition under Section 72 seeking to vacate the tax deed proceedings. They alleged that no notice of such proceedings had been given to Helen Conway or Samuel Macklin, that no guardian ad litem had been appointed for the four minor owners of the property, and that Hawthorn, Lane and Company, the respondent-appellee, had given a fictitious address for Macklin in order to deliberately conceal notice of the proceedings from him. On October 31, 1966, on respondent's motion the court dismissed the petition.
In a long line of cases the Illinois Supreme Court has repeatedly held that in a tax deed proceeding Section 72 may not be used to put in issue for the second time questions previously passed upon in the original proceedings, except where the record establishes a prima facie case of fraud. Cherin v. R. & C. Company, 11 Ill.2d 447, 143 N.E.2d 235; Southmoor Bank & Trust Co. v. Willis, 15 Ill.2d 388, 155 N.E.2d 308; Young v. Madden, 20 Ill.2d 506, 170 N.E.2d 551; Dahlke v. Hawthorne, Lane & Co., 36 Ill.2d 241, 222 N.E.2d 465; Zeve v. Levy, 37 Ill.2d 404, 226 N.E.2d 620. In the instant case the trial court expressly found that all notices required by law had been given and that Hawthorn, Lane and Company had complied with the required provisions. The sole issue for our determination therefore is whether the tax deed was procured by fraud.
The only allegation of fraud made in the petition is the failure to procure personal service on Samuel Macklin. In their brief the petitioners contend that the affidavits of the process servers show that they did not make due and diligent inquiry to ascertain the correct address of Macklin and that such action amounts to fraud. One of the process servers testified at the tax deed proceedings that he had made inquires as to Macklin's address in the neighborhood in which Macklin had once lived, that he searched the Chicago and suburban telephone directories for his address and that after that proved unsuccessful, he had mailed a notice to Macklin by registered mail. That testimony remains unchallenged. The mere fact that respondent's agent could have made a more diligent search does not establish fraud. To prove the fraud required to sustain a petition under Section 72 to vacate a tax deed order, the petitioner must establish a wrongful intent or pattern of deception. Dahlke v. Hawthorne, Lane & Co., supra; Zeve v. Levy, supra. It is admitted that Macklin had no interest in the subject property other than as executor of the estate of Helen Thompson. As such he was not interested in the real estate within the meaning of the provisions requiring notice in tax deed proceedings. In re Estate of English, 24 Ill.2d 357, 181 N.E.2d 111. The Probate Act was amended giving executors a new interest in the real property of an estate, but that change only affects estates of persons dying after July 1, 1965. Ill.Rev.Stat., ch. 3, §§ 209--10, 219a, 225 (1967). It is also admitted that personal service was had on Eugene Tate, owner of a one-half interest in the property, Ella Conway and her husband, the three minors who were listed in the estate of Helen Thompson as the children of Ella Conway, Serenia Booth, a tenant in the building, and the Cook County Department of Welfare. It is not credible that those, the most interested parties, would be notified and the proceedings be fraudulently concealed from Macklin.
Petitioners also contend that it was error to proceed to trial until it appeared of record that a guardian ad litem...
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