Southmoor Bank & Trust Co. v. Willis

• Court: Illinois Supreme Court
• Writing for the Court: DAVIS
• Citation: Southmoor Bank & Trust Co. v. Willis, 155 N.E.2d 308, 15 Ill.2d 388 (Ill. 1958)
• Decision Date: 18 September 1958
• Docket Number: No. 34756,34756
• Parties: SOUTHMOOR BANK & TRUST COMPANY, Trustee, Appellant, v. Mamie WILLIS et al. (Walter R. Pichler, Exr., Appellee.)

Page 308

155 N.E.2d 308

15 Ill.2d 388

SOUTHMOOR BANK & TRUST COMPANY, Trustee, Appellant, v. Mamie WILLIS et al. (Walter R. Pichler, Exr., Appellee.)

No. 34756.

Supreme Court of Illinois.

Sept. 18, 1958.

As Modified on Denial of Rehearing Jan. 22, 1959.

Allan L. Blair, Chicago, for appellant.

Mitchell A. Bishart and Stanley Werdell, Chicago, for appellee.

Robert S. Cushman, Chicago, amicus curiae.

DAVIS, Justice.

This appeal brings before us the question of the validity of a tax deed issued pursuant to an order of the county court of Cook County, entered in the county collector's application for judgment of sale of certain lots and lands returned delinquent for nonpayment of general taxes for the year 1952, under the 1951 amendment to section 266 of the Revenue Act of 1939. Ill.Rev.Stat.1951, chap. 120, par. 747.

On June 27, 1956, the Interstate Bond Company filed a petition alleging the purchase of the parcel of real estate in question at such sale; that the parcel had not been redeemed and the time for redemption would expire on November 26, 1956; that all notices required by law would be given; and that prior to the entry of an order directing the county clerk to issue a tax deed, all taxes and special assessments which are due and payable would be paid, and all forfeitures and tax sales, if any, would be redeemed. The petition prayed that the court enter an order directing the county clerk to issue a tax deed conveying such real estate to petitioner, unless it was redeemed within the time and in the manner provided by law, and for writ of assistance.

Thereafter on December 6, 1956, the Interstate Bond Company filed its application for an order directing the county clerk to issue such tax deed, alleging that the time for redemption had expired; that the parcel had not been redeemed; that all taxes and special assessments which became due and payable subsequent to the sale had been paid and all forfeitures and tax sales redeemed; that all notices required by law had been given; and that petitioner had complied with all the provisions of law entitling it to a tax deed.

Pursuant to this petition, the county court, on December 6, 1956, entered an order specifically finding that petitioner had purchased the real estate at the sale of lots and lands for the nonpayment of general taxes levied for 1952; that the time for redemption had expired without such parcel having been redeemed; 'that all taxes and special assessments which became due and payable subsequent to the said sale have been paid, and all forfeitures and tax sales, if any, which occurred subsequent to the saie sale have been redeemed;' and 'that all notices required by law have been given and Petitioner, Interstate Bond Company, has complied with all the provisions of law entitling it to tax deed to said parcel(s) of real estate.' The order concluded by adjudging that the county clerk issue to the petitioner a tax deed to such real estate.

Pursuant to this order, tax deed was issued to Interstate Bond Company, and by mesne conveyances its title and interest in this real estate was conveyed to the Southmoor Bank and Trust Company, as trustee, petitioner in this appeal. Southmoor filed a petition for writ of assistance on October 10, 1957, based on the tax deed to the Interstate Bond Company. Thereafter on November 4, 1957, defendant Margaret Johnson filed a petition for post-order relief, pursuant to section 72 of the Civil Practice Act (Ill.Rev.Stat.1957, chap. 110, par. 72), alleging that she was the owner of the premises; that back taxes for the years 1936, 1937 and 1938 had not been paid; that she had paid certain taxes subsequent to the tax sale; and that the tax sale in question was void. Southmoor moved to strike the petition of Margaret Johnson, which motion was denied; it then filed answer to the petition and the cause was heard on the petition of Southmoor for a writ of assistance, the petition of Margaret Johnson, the answer thereto, and a stipulation of the parties. The stipulation recited that all notices required by law were served upon the necessary parties; that Southmoor purchased its interest in the property in question in reliance upon a petition in which it was recited that all taxes due and payable thereon would be paid and upon the findings in the order of the county court that Interstate Bond Company had complied with all the provisions of law entitling it to a deed; that Interstate Bond Company caused the county clerk to make a search for prior taxes, and it was there found that such taxes were paid; that the taxes for the years 1936, 1937, and 1938 were due and unpaid; and that Southmoor was a bona fide purchaser for value. On November 22, 1957, the county court entered an order declaring that the tax sale and deed based thereon were void, in that taxes for the years 1936, 1937, and 1938 were unpaid. Southmoor, petitioner, appealed from this order. Subsequent to the appeal, Margaret Johnson died, and her executor, Walter R. Pichler, was substituted as defendant-appellee in this court and is herein referred to as defendant.

Petitioner and amicus curiae contend that the order of the county court directing the issuance of the tax deed cannot be collaterally attacked in this manner; and that appellee cannot attack petitioner's title since petitioner purchased its interest in such realty in good faith and in reliance upon the record of the court finding that all prior taxes had been paid. Defendant urges that section 72 of the Civil Practice Act affords a procedure whereby the county court had jurisdiction to set aside its prior order for the reason that it contravened the Revenue Act.

In 1951 the legislature amended the Revenue Act and provided in section 266 that: 'Tax deeds issued pursuant to this section shall be incontestable except by appeal from the order of the county court directing the county clerk to issue the tax deed. This section shall be liberally construed so that tax deeds herein provided for shall convey merchantable title.' (Ill.Rev.Stat.1953, chap. 120, par. 747.) The above quoted language was retained in this section, as amended in 1957. (Ill.Rev.Stat.1957, chap. 120, par. 747.) The legislative history and purpose of the 1951 amendments to the Revenue Act were fully considered in Cherin v. R. & C. Company, 11 Ill.2d 447, 143 N.E.2d 235.

The Civil Practice Act was amended and revised by the legislature in 1955, and section 72 thereof established a procedure for obtaining relief from final orders, judgments and decree. (Ill.Rev.Stat.1955, chap. 110, par. 72(1)-(7) incl.) Subsection (1) abolished all writs of error coram nobis and coram vobis, writs of audita querela, bills of review and in the nature of a bill of review, combined into a single petition the various post-judgment and decree remedies heretofore available in legal, equitable and statutory proceedings under such writs and bills. Subsection (2) provided that the petition shall be filed in the same proceeding in which the order, judgment or decree was entered, but that it is not a continuation thereof; and that notice shall be given to all parties to the petition as provided by Rule 7-2, but new process need not issue. (Ill.Rev.Stat.1955, chap. 110, par. 101.7-2.) Subsections (3) and (4) provided that the petition must be filed not later than 2 years after the entry of the order, judgment or decree, and that the filing of the petition does not affect the order, judgment or decree, or suspend its operation. Subsection (5) provided that unless lack of jurisdiction affirmatively appears from the record proper, the vacation or modification of an order, judgment or decree pursuant to this section will not affect the right, title or interest in or to any property of any person, not a party to the...