Dahlke v. Hawthorn, Lane & Co.

• Decision Date: 28 October 1966
• Docket Number: No. 39849,39849
• Citation: 222 N.E.2d 465,36 Ill.2d 241
• Parties: Arthur J. DAHLKE, Appellee, v. HAWTHORN, LANE & COMPANY, Appellant. *
• Court: Illinois Supreme Court

Page 465

222 N.E.2d 465

36 Ill.2d 241

Arthur J. DAHLKE, Appellee, v. HAWTHORN, LANE & COMPANY, Appellant. ^* No. 39849.

Supreme Court of Illinois.

Oct. 28, 1966.

Rehearing Denied Jan. 17, 1967.

Allan L. Blair, Chicago (Bruce M. Buyer and Raymond J. Miller, Chicago, of counsel), for appellant.

Herbert F. Zornow, John E. Toomey, and Eugene M. Wiase, Chicago, for appellee.

HERSHEY, Justice.

Albert J. Dahlke filed a petition in the circuit court of Cook County to set aside a tax deed issued to the respondent, Hawthorn, Lane & Company. The trial court dismissed the petition but, on appeal, the appellate court reversed and remanded the cause with directions that the order directing the issuance of the deed be vacated. (67 Ill.App.2d 44, 214 N.E.2d 568.) We have granted leave to appeal for further review.

The property involved consists of two lots situated at the southeast corner of 137th and Illinois Streets in Riverdale, and is improved with a one and one-half story frame dwelling fronting on 137th Street and a small tar-papered structure to the rear facing Illinois Street. At all times essential, petitioner and his wife, Adeline Dahlke, were the record owners of the lots and resided on the first floor of the frame dwelling. The second floor was occupied by a niece, shirley Fazio, and the small structure at the rear was occupied by James Little and his family.

On February 5, 1962, the county collector filed an application for a judgment and order of sale in respect of the two lots because of delinquent 1960 real-estate taxes. Such an order was entered February 16, 1962, and five days later the property was sold at public auction of First Lien Company which was issued a certificate of purchase. Later, First Lien paid the 1961 and 1963 general taxes, and petitioner paid the taxes extended for 1962. On March 8, 1963, First Lien mailed a notice to petitioner informing him of the sale, and on January 14, 1964, mailed an additional notice urging redemption.

Although the period for redemption would normally have expired on February 21, 1964, two years after sale, it was extended to August 10, 1964, under the provisions of section 263 of the Revenue Act. (Ill.Rev.Stat.1963, chap. 120, par. 744.) No redemption occurred and as a consequence First Lien, on March 31, 1964, filed a petition for the issuance of a tax deed of which notice was given to petitioner and his wife both by mail and by personal service on April 9, 1964.

On August 10, 1964, First Lien sold and assigned its certificate of purchase to the respondent, Hawthorn, Lane & Company, which was substituted as petitioner for a tax deed. Thereafter, on September 4, 1964, an order was entered finding that all required notices had been given, that the time for redemption had expired, and that respondent was entitled to a deed. One week later respondent wrote to petitioner informing him of the issuance of the deed and offering him an opportunity to negotiate a repurchase, and on September 29, 1964, respondent caused a writ of assistance to be served. Petitioner failed to respond to any of such notices. On October 5, 1964, however, when faced with possible eviction, he signed a document wherein he acknowledged that he had no further right or interest in the premises and agreed to occupy them as a tenant at a rental of fifty dollars per month.

Approximately two weeks later, petitioner, proceeding under the provisions of section 72 of the Civil Practice Act, (Ill.Rev.Stat.1963, chap. 110, par. 72,) instituted the present suit to set aside the tax deed alleging, among other things, that he had received no prior notices of the sale or issuance of the deed; that he had no actual notice of the sale or deed; that any notices served had been delivered to his wife who, being mentally ill, had hid them so that they were only recently discovered by the petitioner; that the other persons in possession of the premises, viz., fazio and Little, had not been notified of the tax proceedings as required by statute; and that such omissions constituted fraud warranting the vacation of the order for deed. Respondent's answer denied such allegations and, after a hearing on the merits, the petition was denied.

We have repeatedly held that in a tax-deed proceeding section 72 of the Civil Practice Act may not, in the absence of fraud, be used to again put in issue questions previously passed upon by the trial court, (Southmoor bank and Trust Co. v. Willis, 15 Ill.2d 388, 155 N.E.2d 308; Shapiro v. Hruby, 21 Ill.2d 353, 172 N.E.2d 775); such prior determinations being conclusive upon all parties and immune from collateral attack. (Cherin v. R. & C. Company, 11 Ill.2d 447, 143 N.E.2d 235; Clark v. Zaleski, 253 Ill. 63, 97 N.E. 272.) In so holding we have given effect to the 1951 amendment to section 266 of the Revenue Act, (Ill.Rev.Stat.1963, chap. 120, par. 747,) which provides that tax deeds issued pursuant thereto shall be incontestable except by direct appeal. (Urban v. Lois, Inc. 29 Ill.2d 542, 194 N.E.2d 294; Stanley v. Bank of Marion, 23 Ill.2d 414, 178 N.E.2d 367.) Unlike the procedure which formerly prevailed, wherein the determination of statutory prerequisites for a tax deed was largely an administrative matter, it is now for ...