McMillen v. Rydbom

• Decision Date: 16 February 1965
• Docket Number: Gen. No. 64-61
• Citation: 205 N.E.2d 813,56 Ill.App.2d 14
• Parties: Jack L. McMILLEN, Thelma M. McMillen and Inez Nelson, Appellees, v. Roy RYDBOM and Rena Rydbom, Appellants.
• Court: United States Appellate Court of Illinois

Page 813

205 N.E.2d 813

56 Ill.App.2d 14

Jack L. McMILLEN, Thelma M. McMillen and Inez Nelson, Appellees, v. Roy RYDBOM and Rena Rydbom, Appellants.

Gen. No. 64-61.

Appellate Court of Illinois, Second District.

Feb. 16, 1965.

Supplemental Opinion on Denial of Rehearing April 9, 1965.

Richard C. Koch, Chicago, David H. Armstrong, Autora, for appellants.

Sype & Kalivoda, Rockford, for appellees.

DAVIS, Justice.

This is an appeal from the Order of the Circuit Court of Winnebago County overruling defendant's motion to strike and dismiss plaintiffs' amended complaint and from a decree pro confesso quieting plaintiffs' title to certain real estate by invalidating a tax deed and a certain mesne conveyance based on such deed.

Plaintiffs' amended complaint alleged that 'defendants' claim in said premises is based on an invalid tax deed dated December 8, 1962, and is a cloud on plaintiffs' title', and that plaintiffs are fee owners of said premises, having taken title thereto by a certain Trustee's Deed dated July 5, 1956.

Defendants' motion charged that the Circuit Court lacked jurisdiction to set aside the tax deed. The basis for this contention was that said complaint constituted an unwarranted attack on the validity of the Order of the County Court of Winnebago County, authorizing the issuance of the tax deed, in violation of the provisions of section 266 of the Revenue Act of 1939, as amended. (Ill.Rev.Stat.1963, Chap. 120, par. 747).

The Order of the County Court was entered December 4, 1962. It recited that 'all notice required by law has been given and petitioner, John J. O'Brien has complied with all provisions of the law entitling it to a tax deed to said parcel of real estate.'

The motion asserted that the defendants became bona fide purchasers of said premises on December 10, 1963; that plaintiffs had knowledge that sale of said premises to defendants was imminent, yet failed to take action until the filing of this action on or about March 2, 1964; and that therefore defendants' title cannot be disturbed. Defendants' motion also challenged the plaintiffs' allegation 'that defendants' claim * * * is based on an invalid tax deed' and plaintiffs' allegation of ownership of said premises, as unjustified and erroneous legal conclusions, and stated that said complaint did not state a cause of action.

Upon hearing in the trial Court, the defendants elected to stand on their motion to strike and dismiss the amended complaint. The Court thereupon overruled defendants' motion, took said complaint as confessed by the defendants, and, without the benefit of evidence concerning the matters in issue, entered the Order appealed from.

The propriety of the Order appealed from rests squarely upon the construction of section 266 of the Revenue Act as amended in 1951, (Ill.Rev.Stat.1963, Chap. 120, par. 747), and section 72 of the Civil Practice Act (Ill.Rev.Stat.1963, Chap. 110, par. 72), pertaining to the conclusive effect of the order of the County Court in the county collector's annual application for judgment and sale for delinquent taxes for 1958. Such order judicially determined the performance of conditions precedent to the issuance of a tax deed relative to notice and directed that such deed issue.

These statutes were construed by the Illinois Supreme Court in a gamut of cases beginning with Cherin v. R. & C. Company and ending with Urban v. Lois, Inc., towit: Urban v. Lois, Inc., 29 Ill.2d 542, 194 N.E.2d 294 (1963); People ex rel. Wright v. Doe, 26 Ill.2d 446, 187 N.E.2d 222 (1962); Freisinger v. Interstate Bond Co., 24 Ill.2d 37, 179 N.E.2d 608 (1962); Stanley v. Bank of Marion, 23 Ill.2d 414, 178 N.E.2d 367 (1961); Shapiro v. Hruby, 21 Ill.2d 353, 172 N.E.2d 775 (1961); Remer v. Interstate Bond Co., 21 Ill.2d 504, 173 N.E.2d 425 (1961); Southmoor Bank and Trust Co. v. Willis, 15 Ill.2d 388, 155 N.E.2d 308 (1958); and Cherin v. R. & C. Company, 11 Ill.2d 447, 143 N.E.2d 235 (1957).

On January 1, 1964, jurisdiction over cases involving a freehold was transferred from the Supreme to the Appellate Court by the new Judicial Article. (Section 9, Art. VI, Illinois Constitution of 1870, S.H.A.). Consequently, the appeal was to this Court.

In the construction of these statutes, the Supreme Court considered the overall legislative purpose of section 266 of the Revenue Act to render tax titles merchantable and that of section 72 of the Civil Practice Act to provide one simple but comprehensive procedure, applicable to all proceedings, whereby a litigant may seek post trial relief in all appropriate cases. The penumbral area created by these statutes has been rendered progressively clear only by the course of litigation in these cases.

The development of Illinois law in connection with the issuance of tax deeds, before and after the 1951 amendment of Section 266, was reviewed in Cherin v. R. & C. Company, 11 Ill.2d 447, 143 N.E.2d 235. At pages 451 and 452, 143 N.E.2d at page 237, the Court stated:

'Prior to the amendment of 1951 the statutes contemplated that the county clerk should administratively determine the factual matters giving rise to the substantive rights of parties after an annual tax sale, namely, the expiration of the period of redemption and the giving of statutory notices. Such determination was made by him from affidavits on file in his office and he issued tax deeds therefrom as the culmination of the annual tax sale involved. Laws of 1933, p. 923; People v. Altman, 9 Ill.2d 277, 137 N.E.2d 357. Since this was not a judicial determination of facts, this court, on review, required the utmost in strict observance of form. No defect or omission in the affidavit filed with the clerk could be supplied, regardless of what the real facts might have been. Esker v. Heffernan, 159 Ill. 38, 45, 41 N.E. 1113; Gage v. Mayer, 117 Ill. 632, 638, 7 N.E. 97. It was beyond the power of the court to determine from the evidence upon hearing whether the statutory conditions precedent had been met. Lawton v. Sweitzer, 354 Ill. 620, 630, 188 N.E. 811. Such exacting, technical procedure resulted in numerous defective titles and time-consuming litigation, and served to encumber rather than free land to once again enter the stream of commerce and bear its aliquot share of the tax burden.'

In Cherin at pages 452 and 453, 143 N.E.2d 235, the Court held that the legislature, in Section 266 of the Revenue Act as amended in 1951, assimilated the procedure approved by the Court in Clark v. Zaleski, 253 Ill. 63, 97 N.E. 272 (1912), relative to tax foreclosure proceedings; and that under the 1951 amendment, the procedure of filing petition, in the annual application for judgment and sale for delinquent taxes, for supplemental decree for the issuance of tax deed was approved, proof of notice by requisite affidavit discontinued, judicial determination of statutory compliance ordained, collateral attack thereof barred, and greater stability of title established.

The Court also held, in Cherin, that the County Court had jurisdiction to order tax deed to issue. At pages 454 and 455, 143 N.E.2d at page 239, the Court stated:

'The county court had jurisdiction of the subject matter and acquired jurisdiction of the land in question in this proceeding by publication in the county collector's application for judgment and sale of delinquent lands, and retained jurisdiction to enter order for issuance of deed and writ of assistance, upon proof of notice as provided in section 263 of the Revenue Act. (Ill.Rev.Stat.1955, chap. 120, par. 744.) The legislature gave the county court the same jurisdiction to hear and determine supplemental proceedings as in tax foreclosure proceedings. People v. Altman, 9 Ill.2d 277, 137 N.E.2d 357. This jurisdiction was properly invoked in this case for a conclusive determination that respondent had done all things required by the statute to entitle it to a tax deed.'

In Southmoor Bank and Trust Co. v. Willis, 15 Ill.2d 388, 393-396, 155 N.E.2d 308, the Court construed section 266 of the Revenue Act, which provided for the incontestability of the tax deeds except by appeal from the Order of the County Court directing their issuance and for its liberal construction to promote merchantability, with the provisions of Section 72 of the Civil Practice Act. The Court there held that petition under Section 72 of the Civil Practice Act cannot be used to put in issue questions previously adjudicated by valid means.

In the case of People ex rel. Wright v. Doe, 26 Ill.2d 446, at pages 451 and 452, 187 N.E.2d 222, at page 225, the Court stated:

'Thus, in Southmoor Bank and Trust Company v. Willis, 15 Ill.2d 388, 155 N.E.2d 308, we clearly indicated that section 72 of the Civil Practice Act is available to afford relief from tax deed orders when facts establishing the right to such relief are alleged and proved. In the Southmoor case, the tax deed was attacked, not for lack of proper notice, but upon other grounds. In fact, the petition was heard upon a stipulation in which it was conceded that all notices required by law were served upon the necessary parties, and that the grantee of the original tax deed holder was a bona fide purchaser. Under these circumstances, we held that the county court had properly denied relief, saying that section 72 of the Civil Practice Act 'cannot be used to again put in issues questions previously adjudicated by valid means (citation) and cannot be used to set aside an order, judgment or decree which will affect the right, title or interest in or to any property of any person, not a party to the original action, acquired for value after the entry of the order, judgment, or decree, but before the filing of such petition, unless lack of jurisdiction affirmatively appears from the record proper.' (15 Ill.2d 388, 395-396, 155 N.E.2d 308, 312.)'

The series of cases cited above have pronounced that section 266 of the Revenue Act, as amended in 1951 provides that tax deeds...