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Weiner v. Jobst

OPINION FILED JANUARY 20, 1961.

JOHN C. WEINER

v.

ARTHUR D. JOBST ET AL., — (EDWARD G. SMITH, APPELLEE,

v.

WESTERN NATIONAL BANK OF CICERO, APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM V. BROTHERS, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 29, 1961.

On May 7, 1957, the circuit court of Cook County entered a decree foreclosing the lien of certain special assessments of the town of Cicero. Edward G. Smith made the highest cash bid at the sale held pursuant to the decree on May 23, 1957, deposited $827, the amount of his bid, with the county treasurer, and a certificate of purchase was issued to him. Thereafter, upon leave granted, Smith filed a verified petition alleging that on March 30, 1959, James F. Lyons attempted redemption and that Lyons had no redeemable interest. The relief sought was that the redemption be set aside and the clerk of the county court be directed to return the sum of $1,292.89 deposited with him by Lyons and that the attempted redemption be expunged from the records of the county clerk. Lyons answered, evidence was heard, and an order was entered expunging the redemption. The motion of Western National Bank of Cicero, as trustee under trust No. 982, by Lyons, its agent and attorney for the beneficiary of the trust, to vacate the order expunging the redemption was denied. The bank prosecutes this appeal from that order. A freehold is necessarily involved.

By his answer to the intervening petition, Lyons admitted that he did not personally claim a redeemable interest in the property, averring that, as agent of the Western National Bank of Cicero, trustee under trust No. 982, and as attorney for the beneficiary under the trust, he made the challenged redemption. The answer sets up a chain of title showing that Jacob Jacobson and his wife, Ida, acquired title to the real estate in 1932, and that the deed was recorded; that on March 16, 1937, Jacobson and his wife conveyed the property to Liberty National Bank of Chicago, as trustee under trust No. 2208; that thereafter the Liberty National Bank, as trustee, reconveyed to Jacobson and his wife, and that the deed was not recorded; that in 1951 Jacobson and his wife conveyed the property to Mary Chelma, by a deed which was recorded; that, thereafter, on December 2, 1954, Mary Chelma, then Mary Chelma Joseph, and her husband, Paul Joseph, conveyed the property to Western National Bank of Cicero, as trustee under trust No. 982; that, in December of 1959, Lyons learned for the first time from an opinion of title that Jacobson had, by inadvertence and mistake, failed to cause the deed which he received in March of 1937 from the Liberty National Bank, as trustee under trust No. 2208, to be recorded; that steps were being taken to obtain a duplicate of the deed, remedying the objections in the opinion of title and showing title to the property in the name of Western National Bank of Cicero, as trustee under trust No. 982; that, as agent and attorney, Lyons, in addition to paying the county clerk $1,249.44 for redemption, paid to him the additional sum of $438.21 for redemption of the real estate taxes for the years 1947 to 1955. Lyon's answer concluded that the Western National Bank of Cicero, as trustee under trust No. 982, had a redeemable interest in the real estate, on behalf of the beneficiary under the trust. Concluding averments are that Smith waited several months after the redemption made on March 30, 1959, and until the beneficiary under trust No. 982 was attempting to place the real estate back on the rolls of taxable property, while knowing of the redemption from the special assessment sale, before attempting to set aside the redemption from the sale.

On April 14, 1960, the court entered an order finding that Smith was the purchaser at the sale of the real estate and that Lyons had no interest entitling him to redeem. The decree adjudged that the attempted redemption be expunged on the records of the county clerk and that the redemption money deposited by Lyons be returned to him.

Thereafter, on April 29, appellant, by Lyons, its agent, and attorney for the beneficiary of the trust, made a motion and filed a petition to vacate the order of April 14 and to set aside the issuance of the tax deed. The petition narrates the prior proceedings and adds that the redemption was made on March 30, 1959, within two years from May 23, 1957; that a tax deed was issued to Smith on April 14, 1960, and recorded four days later; that, on April 18, 1960, a duplicate trustee's deed was issued by the Liberty National Bank, as trustee under trust No. 2208, to replace the original deed issued on May 7, 1937, to Jacob Jacobson and his wife, Ida, and that the duplicate deed was recorded on April 21, 1960. The petition averred that by the issuance of this deed, the conveyances made by Jacobson and his wife to Mary Chelma and the conveyance by her to appellant vested good title in it as of the date of the issuance of its deed on December 2, 1954, and that, accordingly, at the time of redemption it had a redeemable interest.

To obtain a reversal, the appellant, Western National Bank of Cicero, contends that it had a redeemable interest in the property by reason of the deed from Mary Chelma Joseph and her husband, Paul, dated December 2, 1954, conveying the property to it, and that the recordation of a duplicate trustee's deed, dated May 7, 1937, conveying the property from Liberty National Bank to Jacob Jacobson and his wife, Ida, on April 21, 1960, not only gave it a redeemable interest, which it already had, but also a complete and merchantable title to the property. The appellee, Smith, maintains that Lyons, who attempted to redeem from the foreclosure sale, had no redeemable interest of any kind in the real estate at that time; that the title records further disclose that appellant had no redeemable interest since it had no record title at the time of redemption and did not receive it until after the order expunging the redemption was entered and more than one year after the time for redemption had expired.

Section 5 of article IX of the constitution provides, in part: "The right of redemption from all sales of real estate for the non-payment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested in such real estate, for a period of not less than two years from such sales thereof." Implementing the constitutional provision, section 253 of the Revenue Act, so far as relevant, provides: "Real property sold under the provisions of this Act may be redeemed at any time before the expiration of two years from the date of sale, by payment in legal money of the United States to the county clerk of the proper county, the amount for which the same was sold, together with the amount of the penalty bid at such sale." Ill. Rev. Stat. 1959, chap. 120, par. 734.

Under the applicable constitutional and statutory provisions, a stranger to the record title has no right to redeem. (People v. Hess, 7 Ill.2d 192; Conkey v. Rex, 212 Ill. 444.) Appellant maintains, however, that the constitutional and statutory provisions do not require complete legal title to redeem, but only an undefined "interest" in the real estate. Reliance upon the statement in People v. Hess that complete legal title to redeem is not necessary, but only an undefined "interest" in the real estate, does not aid appellant for the reason that when the attempted redemption was made, Lyons had no interest of record in the property. And admittedly, he has never had any personal interest in the property but was, instead, a complete stranger to the chain of title. The period of redemption expired on May 23, 1959. Appellant did not have title to the property in question and could obtain title only through an unrecorded deed. The petition to vacate the order of April 14, 1960, shows that completion of the record chain of title in appellant was too late. A duplicate trustee's deed was issued on April 18 and recorded April 21, 1960. In short, appellant was a stranger in the chain of title and did not have good record title until after the order of April 14, 1960, setting aside the redemption by Lyons, the issuance of the tax deed to Smith and its recording. Good title was not established in the bank until after Smith, the purchaser at the foreclosure sale, had completed his title.

Franzen v. Donichy, 9 Ill.2d 382, holding that a contract purchaser is entitled to redeem, does not support appellant. In Franzen, we stated: "One who seeks to establish the existence of a lost deed by parol testimony must bear the burden of making such proof in a clear and conclusive manner. Deeds are evidence of title, and if they are lost public policy demands that proof of their former existence be strong and conclusive."

By several contentions appellant insists that equities favor its position. First, it urges that Smith, by his purchase at the foreclosure sale became entitled to no more than the redemption money. It is pointed out that Smith waited from the date of redemption on March 30, 1959, until January 29, 1960, before filing his petition to expunge the redemption, at which time he knew that the property was then salable, desiring "to then secure this valuable property for the small amount of his bid at the tax sale." These statements find no support in the record. Neither the pleadings nor the evidence even suggest the value or salability of the property. Similarly, appellant's assertions with respect to Smith obtaining a greater profit by the sale of the property lack substantiation in the record.

Appellant next invokes the familiar rule that redemption, although a statutory privilege and to be exercised in substantial compliance with the statute, is regarded with favor, and that unless injury is the result to the purchaser at the sale, redemption laws will be liberally construed. To support its contention that it had a redeemable interest, appellant cites Houston v. Buer, 117 Ill. 324, holding that color of authority to act for a person entitled to redeem is sufficient. In Houston, the redemption was effected with an agent of the purchaser, and the purchaser accepted the money as a redemption. Here, Lyons made his redemption with the county clerk. Notice to the purchaser at the tax foreclosure sale was not given and he did not accept the money. On the other hand, when the purchaser prepared to acquire his deed, he sought to vacate the redemption. Moreover, Lyons made the redemption personally. A concession that he redeemed for appellant would not avail the latter for the adequate reason that it did not have record title until after the conclusion of the proceedings. The right to redeem is statutory and must be exercised conformably to the law, and not otherwise. Muir v. Mierwin, 385 Ill. 273.

Appellant asserts that knowledge of the fact of appellant's interest was indicated in its answer to Smith's intervening petition to expunge the redemption and again in the petition to vacate the order of April 14, 1960. From this, it contends that a purchaser, who has notice of a prior unrecorded deed, is bound by the terms of the prior unrecorded deed. The authorities (Myers v. Myers, 167 Ill. 52; Hardin v. Forsythe, 99 Ill. 312; Heaton v. Prather, 84 Ill. 330; Doyle v. Teas 4 Scam. 202) cited by appellant do not sustain its position. It is true, of course, that the pleadings set up appellant's interest in the property. The fact remains, however, that its interest was not established until after the final order of April 14, 1960. The deed establishing appellant's title was not recorded until April 21, 1960. The public records showed no interest of appellant in the chain of title at the time of the foreclosure sale. Smith, the purchaser at the tax foreclosure sale, purchased without notice of any interest of appellant in the title, and did not receive notice of appellant's claim of title until after the period of redemption had expired.

Section 30 of the Conveyances Act (Ill. Rev. Stat. 1959, chap. 30, par. 29) provides: "All deeds, mortgages and other instruments of writing which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice; and all such deeds and title papers shall be adjudged void as to ...


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