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

• Decision Date: 09 September 1975
• Docket Number: 59509,EX-OFFICIO,Nos. 59508,s. 59508
• Citation: 336 N.E.2d 167,32 Ill.App.3d 161
• Parties: Application of COUNTY TREASURER ANDCOUNTY COLLECTOR OF COOK COUNTY, Illinois, for Judgment and Sale of Real Estate for Non-Payment of Taxes for the Year 1969. Appeal of Ron OHR, Petitioner. Appeal of Richard L. HOFFMAN, Respondent.
• Court: United States Appellate Court of Illinois

Page 167

336 N.E.2d 167

32 Ill.App.3d 161

Application of COUNTY TREASURER AND EX-OFFICIO COUNTY COLLECTOR OF COOK COUNTY, Illinois, for Judgment and Sale of Real Estate for Non-Payment of Taxes for the Year 1969 Appeal of Ron OHR, Petitioner Appeal of Richard L. HOFFMAN, Respondent.

Nos. 59508, 59509.

Appellate Court of Illinois, First District, Second Division.

Sept. 9, 1975.

Rehearing Denied Oct. 2, 1975.

Richard L. Hoffman, Evanston, for respondent-appellant.

Frederick S. Stein, Chicago, for petitioner-appellee.

LEIGHTON, Justice:

This is a consolidated appeal from orders entered in two tax foreclosure proceedings. In both, the trial court heard redemption protests which it struck with directions that the county clerk distribute the redemption money. The dispositive issue is whether the court erred in finding that the tax purchaser had complied with all the provisions of the Revenue Act of 1939, as amended, and would have been entitled to tax deeds if the taxpayer had not redeemed. The facts are not in dispute.

In April 1971, two parcels of vacant real estate in Chicago, owned by Richard L. Hoffman, were sold to Ron Ohr for delinquent 1969 general taxes. Under the Revenue Act, Hoffman had until April 16, 1973 to redeem his two parcels. On November 30, 1972, proceeding in accordance with the revenue laws, Ohr petitioned for tax deeds to the parcels. Hoffman then lived at 211 Hibbard Road, Wilmette, Illinois. He had an office in Room 559, 20 North Wacker Drive in Chicago. The deeds by which he took title to the parcels were on record and each contained the address of his home. Ohr's agent, when he investigated to determine the persons who had to be served the statutory notices, examined the two deeds. On December 5, 1972, the agent attempted to serve Hoffman at his Wacker Drive office. The attempt was unsuccessful.

Two days later, either Ohr or someone on his behalf, ordered notice by publication be made on Hoffman. Accordingly, a newspaper in the county agreed to insert the requisite statutory notice in its issues of December 7, 8 and 11, 1972. Then, between the date of the first publication and January 9, 1973, Ohr's agent made five unsuccessful attempts to serve Hoffman in his office. On January 11, 1973, he sent Hoffman a letter by certified mail, addressed to the Wacker Drive office, and containing the copy of a notice concerning one of the tax deed petitions. On April 16, 1973, the day on which the period of redemption was to expire, Hoffman redeemed, subject to a protest as to each petition.

In doing so, he invoked a 1971 amendment to the Revenue Act which provided that a person redeeming from a tax foreclosure, after a filing of a tax deed petition, and '* * * who desires to preserve his right to defend against such petition for any reason, * * *' could redeem under protest and be entitled to defend against issuance of a tax deed. ¹ Hoffman's protests were based on the claim that Ohr, a petitioner for tax deeds, had not complied with all the provisions of the Revenue Act of 1939, as amended. At the hearing of the protests, Hoffman called a witness, testified himself, cross-examined Ohr's agent and introduced documentary evidence which disclosed his residence when Ohr filed his petitions. Testimony of the agent revealed that neither he nor Ohr made any attempt to serve Hoffman where he lived and that after one attempt to effectuate service of the statutory notice at the Wacker Drive office, three insertions of the notice of publication were ordered and later appeared in a newspaper in the county. Hoffman argued that this evidence proved Ohr had not complied with the notice provisions of the Revenue Act and, as a consequence, he was not entitled to the tax deeds. The trial court did not accept this argument. Instead, after hearing the parties, it entered an order in each petition which found that Ohr had complied with all the provisions of the Revenue Act of 1939 and would have been entitled to the tax deeds if Hoffman had not made the redemptions. Therefore, it struck the protests and directed the county clerk to distribute the redemption money on surrender by Ohr of the certificates of sale.

The amendment which allowed Hoffman to redeem under protest provided, in part, that '(u)pon a finding that there has been compliance with all of the provisions of this Act and that the petitioner would be entitled to a deed in the absence of the redemption under protest, the court shall order the protest stricken and direct the county clerk to distribute the redemption money upon surrender of the certificate of sale. Upon a finding sustaining the protest in whole or in part, the court may declare the sale to be a sale in error under either Section 260 or Section 266 (of the Revenue Act), and shall direct the county clerk to return all or a part of the redemption money or deposit to the party redeeming.' ² The language of this amendment causes us to focus on the provisions of the Act with which Ohr had to comply before he was entitled to the tax deeds. One of the these was Section 263 which in one part mandated that '(a) purchaser or assignee shall not be entitled to a tax deed to the premises sold unless not less than 3 months nor more than 5 months prior to the expiration of the period of redemption he shall give notice of the sale and the date of expiration of the period of redemption to the owners, occupants and parties interested in the premises.' ³ The notice, if one were given individual owners or interested parties, who on diligent inquiry could be found in the county, had to be served '* * * by (1) leaving a copy of the notice with such person personally or (2) by leaving a copy at his usual place of abode with some person of the family, of the age of 10 years and upwards, and informing that person of the contents thereof, provided the purchaser or assignee shall also send a copy of the notice by registered or certified mail, return receipt requested, to such party at his usual place of abode * * *.' ⁴ In another part, the same section, before authorizing notice by publication, provides that '(i)f any owner or party...