Romain v. Fink

• Decision Date: 16 March 1955
• Docket Number: Gen. No. 46605
• Citation: Romain v. Fink, 125 N.E.2d 298, 5 Ill.App.2d 323 (Ill. App. 1955)
• Parties: Syd ROMAIN, Appellant, v. Edna FINK and Unknown Owners, Appellees.
• Court: Appellate Court of Illinois

Page 298

125 N.E.2d 298

5 Ill.App.2d 323

Syd ROMAIN, Appellant, v.Edna FINK and Unknown Owners, Appellees.

Gen. No. 46605.

Appellate Court of Illinois, First District, Third Division.

March 16, 1955.

Rehearing Denied April 6, 1955.

Ned Langer and Sheldon Belofsky, for appellant.

John Gutknecht, States Atty., of Cook County, Chicago, Gordon Nash and Vincent P. Flood, Asst. States Attys., of counsel, for appellees.

KILEY, Presiding Justice.

This is a proceeding in equity, to foreclose a statutory lien arising under the provisions of Section 247 of the Revenue Act. Ill.Rev.Stat.1953, Chap. 120 § 728.The lien is asserted against certain vacant tax delinquent real estate situated in Cook County, Illinois.The State's Attorney of Cook County was allowed to intervene as amicus curiae and on his motion the cause was dismissed.Plaintiff has appealed.

The facts are undisputed.Plaintiff bought the property at a tax sale for $3.28 being the amount of the County Court judgment for unpaid 1952 taxes and interest.He did not pay the previously unpaid taxes within 10 days to obtain a certificate of purchase under Section 247.The result was a statutory lien under that section for the amount paid plus 5% interest.The accumulated delinquent taxes on the property were $101.69 and the market value approximately $75.00.

The determinative question is whether the lien created 'in favor of the purchaser' under Section 247 of the Revenue Act can be foreclosed in equity in the absence of any statutory provision for foreclosure of the lien.No cases bearing directly on this question have been cited and it appears that this is a case of first impression.

Section 247 provides in part as follows:

'* * * If a purchaser fails to complete his purchase as herein provided, the purchase shall become void, and be of no effect, but the collector shall not refund the amount paid * * *.Said amount shall be * * * distributed to the taxing bodies * * *.The lien for taxes for such amount, however, shall remain on the land, in favor of the purchaser, his heirs or assigns, until paid with five per cent interest * * *.No redemption shall be made without payment of this amount for the benefit of said purchaser, and no future sale of the land shall be made except subject to the lien of such purchaser.'

Plaintiff points out that this section, added to the Revenue Act in 1935 and applicable only to counties over 500,000 population, is designed to procure revenue for the state and is an inducement to make tax money more readily available to the taxing bodies.He argues that the legislative intent would be frustrated unless the inducement of a foreclosure lien was held out to the purchaser who fails to get a certificate of purchase.This, he states, is especially true where the accumulated taxes exceed the value of the tax property.

In this connection it is noted that a tax lien is generally defined as a statutory lien which exists in favor of a state or municipality.Blacks Law Dictionary (4th Ed.1951).This general definition is in accord with Article IX § 4, Illinois Const., S.H.A.Const., which provides that sales of property to collect delinquent taxes shall be made only by county officials.See also, opinions of the Attorney General of Illinois 1943, 244-245 which traces the history of the tax foreclosure suit in Illinois.It seems clear that application of the common legal meaning to the term 'lien for taxes' as it is used here would preclude plaintiff from the right to foreclose since this right does not generally exist for the benefit of a private citizen.

But plaintiff insists that there can be no right without a remedy under Art. II, § 19, Ill.Const. and that equity therefore will grant relief.Plaintiff is not without a remedy.Under Section 247 the property cannot be redeemed unless he is paid.This provision can be applied by suitable action, if needed and his right to be repaid is protected by rendering future sales subject to his lien.Neither Mammina v. Alexander Auto Service Co., 333 Ill. 158, 164 N.E. 173 nor West Chicago Park Commissioners v. Western Granite Co., 200 Ill. 527, 66 N.E. 37, cited by plaintiff, are helpful here.In both of these cases equity enforced a lien, but, the unique tax lien problem was...