Mason v. Rosewell, 81-2003

• Decision Date: 15 July 1982
• Docket Number: No. 81-2003,81-2003
• Citation: 107 Ill.App.3d 943,438 N.E.2d 653,63 Ill.Dec. 722
• Parties: , 63 Ill.Dec. 722 Leonard MASON, Petitioner-Appellant, v. Edward ROSEWELL, County Treasurer of Cook County, Illinois, as Trustee of the Indemnity Fund, created by Section 247a of the Revenue Act of 1939, Respondent- Appellee.
• Court: United States Appellate Court of Illinois

Page 653

438 N.E.2d 653 107 Ill.App.3d 943, 63 Ill.Dec. 722 Leonard MASON, Petitioner-Appellant,
v.
Edward ROSEWELL, County Treasurer of Cook County, Illinois,
as Trustee of the Indemnity Fund, created by
Section 247a of the Revenue Act of 1939,
Respondent- Appellee. No. 81-2003. Appellate Court of Illinois,
First District, Fourth Division. July 15, 1982.

Page 654

[63 Ill.Dec. 723] Lupel & Amari, Chicago, for petitioner-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Jayne Clark Casey, Deputy State's Atty. and Carolyn Clift, Asst. State's Atty., Chicago, of counsel), for respondent-appellee.

[107 Ill.App.3d 944] ROMITI, Justice:

The primary issue in this case is whether a contract purchaser is an owner under section 247a of the Revenue Act of 1939. (Ill.Rev.Stat.1979, ch. 120, par. 728a.) After the property in question was sold at a tax sale, plaintiff, Leonard Mason, failed to redeem within the stipulated time. Thereafter he filed an action against Rosewell as trustee of the Indemnity Fund (Fund) for indemnification under section 247a which provides for indemnification of any owner who without fault or negligence sustains loss or damage by reason of the issuance of a tax deed. The trial court held that a contract purchaser is not an owner and dismissed the complaint. We reverse, holding that a contract purchaser may be an owner. We further hold that the mere fact Mason alleged he hired another person, Bill Randle, to recover the property, that Randle did not do so and that as a direct and proximate result of Randle's conduct a tax deed was issued does not, as a matter of law, bar Mason's recovery.

The procedural facts are somewhat unusual. Mason filed his complaint seeking indemnification on June 11, 1980. The Fund thereafter filed both an answer and a third-party complaint against the allegedly erring agent, Randle. (However Randle has never been successfully served despite several attempts.) Subsequently both Mason and the Fund filed motions for summary judgment with affidavits attached. Both motions were denied, the trial court correctly concluding there were questions of material fact. The Fund then filed a section 45 motion (Ill.Rev.Stat.1979, ch. 110, par. 45), to dismiss. (Mason apparently waived any procedural irregularity.) The Fund alleged in its section 45 motion that: (1) Mason at best had only the rights of a contract purchaser and was not an owner under the statute; (2) the fault of the agent was imputable to Mason, his principal; Mason was liable for his agent's mistakes and therefore could not allege or prove that he was without fault or negligence.

Page 655

[63 Ill.Dec. 724] As already noted the trial court did not rule on the second issue but dismissed solely on the basis that a contract purchaser is not an owner.

I.

A section 45 motion to dismiss merely addresses the issue whether the complaint, liberally construed, can be considered to state a cause of action. (Horwath v. Parker (1979), 72 Ill.App.3d 128, 28 Ill.Dec. 90, 390 N.E.2d 72.) The court must consider solely the allegations set forth in the complaint; it cannot consider any affidavits, depositions or exhibits when considering a section 45 motion to dismiss a complaint for failure to state a cause of action. (Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill.App.3d 128, 3 Ill.Dec. 761, 359 N.E.2d 171.) Likewise well-pleaded facts are considered admitted as true. (Shugan v. Colonial View Manor (1982), 107 Ill.App.3d 458, 63 Ill.Dec. 82, 437...