County Treasurer and Ex-Officio County Collector of Cook County, Application of

• Citation: 113 Ill.App.2d 50,251 N.E.2d 757
• Decision Date: 02 July 1969
• Docket Number: Gen. No. 52595,EX-OFFICIO
• Parties: Application of the COUNTY TREASURER ANDCOUNTY COLLECTOR OF COOK COUNTY for Judgment for Sale of Real Estate for Delinquent Taxes for the Year 1963 and Prior Years. Petition of WINNETKA INVESTMENT CO. for Tax Deed, Petitioner-Appellee. On Answer of Appeal of Joan FRIED and Nathan Schwartz, Respondents.
• Court: United States Appellate Court of Illinois

Page 757

251 N.E.2d 757

113 Ill.App.2d 50

Application of the COUNTY TREASURER AND EX-OFFICIO COUNTY

COLLECTOR OF COOK COUNTY for Judgment for Sale of

Real Estate for Delinquent

Taxes for the Year 1963 and Prior Years. Petition of

WINNETKA INVESTMENT CO. for Tax Deed, Petitioner-Appellee.

On Answer of Appeal of Joan FRIED and Nathan Schwartz, Respondents.

Gen. No. 52595.

Appellate Court of Illinois, First District, Fourth Division.

July 2, 1969.

Bernard Allen Fried, Chicago, for appellants.

Victor S. Peters, Jr., Northfield, for appellee.

STAMOS, Justice.

Respondents appeal from an order directing the County Clerk of Cook County to issue a tax deed to petitioner, the holder of tax certificates of purchase. This appeal is from a consolidated proceeding involving two parcels of unimproved real estate with identical parties and issues.

The issue presented for review is whether the respondents as beneficiaries under an Illinois land trust are such 'parties interested in the real estate' as to require that they be served with notice pursuant to Sections 263 and 266 of the Revenue Act of 1939, Ill.Rev.Stat., ch. 120, §§ 744, ^* 747 (1965)^**.

On June 21, 1967 petitioner filed its applications for orders directing the issuance of tax deeds wherein it recited that it had filed its petitions and that 'all notice required by law to be given have been given and that petitioner had complied with all the provisions of law entitling it to a tax deed.' The period of redemption as extended expired on June 19, 1967 and the petitioner indicated that it would appear in the Circuit Court for the issuance of the tax deeds on June 30, 1967.

On June 27, 1967 respondents appeared by their attorney and filed their answer. Respondents alleged they were beneficiaries under a trust agreement wherein First National Bank of Waukegan is trustee; and their names were known to the applicant herein; and that as a consequence, they were entitled to statutory notice; that no notice was served upon either of the respondents and prayed that the applications for tax deeds be denied. Petitioner replied and denied knowledge of the relationship of said respondents to the land trust; denied respondents were entitled to notice; admitted that personal service was not had upon respondents; but that notice was given them if they were beneficiaries by service of notice upon the trustee. After a hearing the court ordered the issuance of tax deeds and respondents appealed.

In determining whether beneficiaries of a land trust are entitled to notice in a tax proceeding we must consider the character of an Illinois land trust. In Levine v. Pascal, 94 Ill.App.2d 43, 50, 236 N.E.2d 425, 428 (1958), this court said:

'The Illinois land trust, by its very nature, is characteristically different from common law land trusts. While the common law accomplishes a split between the legal title in the trustee and the equitable title in the beneficiary, in an Illinois land trust, the trustee has both legal and equitable title. (See Chicago Federal Savings & Loan Ass'n v. Cacciatore, 33 Ill.App.2d 131, 138, 178 N.E.2d 888.) By placing with the trustee the 'full, complete and exclusive title to the real estate, both legal and equitable,' the beneficiary in an Illinois land trust is left with a personal property interest only. Chicago Federal Savings & Loan Ass'n v. Cacciatore, 25 Ill.2d 535, 185 N.E.2d 670. Numerous other cases stand for the proposition that the interest of the beneficiary of an Illinois land trust is personal property.' (Cases cited).

Only the land trustee and not the beneficiary can accept an offer to purchase the real estate, Schneider v. Pioneer Trust & Savings Bank, 26 Ill.App.2d 463, 168 N.E.2d 808 (1960); the trustee and not the beneficiary is the proper party to bring a forcible detainer action, liberty National Bank v. Kosterlitz, 329 Ill.App. 244, 67 N.E.2d 876 (1946); the beneficiary of a land trust is not a necessary party in a suit to condemn property, Chicago Land Clearance Commission v. Darrow, 12 Ill.2d 365, 146 N.E.2d 1, 68 A.L.R.2d 532 (1957).

In Chicago Federal Savings & Loan Ass'n v. Cacciatore, 33 Ill.App.2d 131, at page 140, 178 N.E.2d 888 at p. 893 (1961), aff'd 25 Ill.2d 535, 185 N.E.2d 670 (1962), this court said:

'Experience over many years has shown that a land trust performs many commercially useful purposes. It goes far to obviate the cumbersome nature of real estate transactions when the there are multiple owners. In the same circumstance, it can simplify the management and financing of real properties and it is especially useful in the financing and marketing of subdivisions and large scale home or apartment building enterprises. Intolerable delays and sometimes insurmountable legal entanglements may result from the death, incompetency or disappearance of an owner of a fractional interest in land. These, too, can be eliminated by the judicious use of a land trust.

As a result, the Illinois land trust has made for itself over the years an important place in the holding and marketing of titles to real estate, in parcels large and small. It is self-evident that this development could not have taken place had not purchasers and lenders considered themselves safe when investing many millions of dollars on the sole security of land trustees' titles to real estate. In this they were repeatedly assured by courts of review that the trust beneficiaries had no interest in the real estate, and that even so strong a charge as a judgment lien against a trust beneficiary was, therefore, no encumbrance against the real estate title.'

The term 'parties interested in the real estate' has been discussed in several Illinois cases. In Re Estate of English, 24 Ill.2d 357, 181 N.E.2d 111 (1962), it was argued that the administrator and the creditors of a decedent were 'persons interested' in his real estate within the meaning of Section 263 and 266 of the Revenue Act of 1939 (Ill.Rev.Stat., ch. 120, §§ 744, 747) requiring notice, in tax deed proceedings, to be served upon occupants, owners and 'parties interested in the real estate' and that since no notice was served upon the appellants and other creditors of the estate the court was without jurisdiction to order issuance of the tax deed. The court said at page 358, 181 N.E.2d at p. 112:

'An administrator takes no interest in the land of decedent, except a naked power to sell in case the personal estate is insufficient to pay debts, and neither he nor a creditor whose claim has been allowed holds a lien upon the land. (Cases cited.) Such persons are not 'interested in the real estate,' within the meaning of the provisions requiring personal notice in tax-deed proceedings.'

In Remer v. Interstate Bond Co., 21 Ill.2d 504, at p. 513, 173 N.E.2d 425, at p. 430 (1961) the court said:

'We now direct our attention to the claim of petitioner that she was entitled to personal notice under the provisions of the Revenue Act by reason of her ownership of the two notes secured by the mortgage, and that in the absence thereof she was denied due process of law. We believe this claim to be untenable for the simple reason that there is no requirement in the statute that personal notice be given to a noteholder. Furthermore, we believe such a provision often would be wholly impracticable because of the multitude of persons holding notes and bonds secured by trust deeds.'

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