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Shuck v. Guarantee Bk. & Trust Co.





APPEAL from the County Court of Rock Island County; the Hon. LAWRENCE L. PHARES, Judge, presiding.


Rehearing denied November 29, 1962.

This case presents the question of the effect of section 255 of the Revenue Act, herein called the Reconveyance Act, (Ill. Rev. Stat. 1959, chap. 120, par. 736) upon tax deeds issued pursuant to tax sales held subsequent to September 1, 1951, and prior to the 1959 amendment to said act.

The real estate involved was duly sold for nonpayment of 1952 general real-estate taxes on October 22, 1953, to Interstate Bond Company, which thereafter paid the 1953, 1954 and 1955 real-estate taxes and served the notices required by law. On May 22, 1956, the county court of Rock Island County entered an order directing the issuance of a tax deed to Interstate, which deed was duly issued on June 1, 1956. By mesne conveyance, the title conveyed by the tax deed was vested in defendant Guarantee Bank and Trust Company.

On April 20, 1961, plaintiff filed a petition for reconveyance of said real estate pursuant to the Reconveyance Act, as it existed in 1955, (Ill. Rev. Stat. 1955, chap. 120, par. 736) on the ground that neither defendant nor its predecessors in title had taken possession of the premises within one year and that they had permitted the premises to be forfeited for taxes before the payment of taxes by them for seven years.

Defendant's motion to dismiss the petition was granted, and judgment was entered for the defendant. Plaintiff brings her appeal from this order directly to this court on the ground that a freehold and the construction of the constitution of Illinois are involved.

Plaintiff contends that she was entitled to a reconveyance under the Reconveyance Act in force at the time of the original tax sale, and that subsequent amendments to the act cannot constitutionally affect her right to a reconveyance. Defendant, however, maintains that the Reconveyance act was repealed by implication in 1951 by amendments to the Revenue Act. They further insist that the 1959 amendment to the Reconveyance Act is valid and limits said act to deeds issued pursuant to tax sales held prior to September 1, 1951.

An understanding of the issues requires an analysis of the legislative history involved. From 1909 until 1959, the Reconveyance Act provided in substance as follows:

"Whenever the grantee of a tax deed to real estate, or any one claiming thereunder, shall not be in possession or occupation of said premises so claimed and shall not take or institute proceedings in good faith to take possession within one year after the date of the first tax deed under his alleged tax title, or whenever the grantee of a tax deed to real estate or any one claiming thereunder shall suffer the same to be forfeited to the State or again sold for taxes or special assessments before he has completed the payment of all taxes and special assessments legally assessed thereon for seven consecutive years, then it shall be lawful for the owner of said real estate or his agent or attorney to pay or tender said tax title holder the amount of moneys paid out and expended by said tax title holder upon said sale with seven per cent (7%) interest per annum thereon, together with subsequent taxes and special assessments paid and the statutory fees and costs incurred, and that upon such payment or tender the said tax title holder shall reconvey the premises aforesaid to the owner thereof." Ill. Rev. Stat. 1955, chap. 120, par. 736.

In 1959 the Reconveyance Act was specifically amended to make it applicable only to tax deeds issued pursuant to tax sales "held on or prior to September 1, 1951." Ill. Rev. Stat. 1959, chap. 120, par. 736.

While the provisions of the Reconveyance Act remained substantially the same from 1909 to 1959, other sections of the Revenue Act relating to tax sales were basically amended in 1951. (Ill. Rev. Stat. 1951, chap. 120, pars. 734, 735, 744, 746, 747, 749, 750, 751.) The history and purpose of the 1951 amendments was fully explained in Cherin v. The R. & C. Company, 11 Ill.2d 447, 451, where we said:

"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.) 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; Gage v. Mayer, 117 Ill. 632, 638.) 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.) 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 the depression period following 1929, tax delinquencies increased to such extent that revenue for essential governmental functions was imperilled. In 1933 the General Assembly amended the Revenue Act of 1872 by adding section 253a, 253b, and 253c (Smith-Hurd Stat. 1933, chap. 120, pars. 238a, 238b and 238c) to provide a more drastic method of tax foreclosure. The right of redemption from such sale was governed by section 253. (Smith-Hurd Stat. 1933, chap. 120, par. 238.) In Clark v. Zaleski, 253 Ill. 63, decided in 1912, the procedure of filing petition in the tax foreclosure proceeding for supplemental decree for the issuance of a tax deed was approved, proof of requisite notice by affidavit discontinued, judicial determination of statutory compliance ordained, collateral attack thereof barred, except for lack of jurisdiction, and greater stability of title established. (People v. Altman, 9 Ill.2d 277; Allen v. Nettleton, 6 Ill.2d 141; Nichols, Illinois Civil Practice, vol. 7, sections 7479-7508 incl.) The legislature was mindful of these facts, of the decisions of this court and of the improved procedure in tax foreclosure proceedings when it amended the Revenue Act in 1951. It then assimilated the procedure with respect to the issuance of deeds following annual tax sales to that used in tax foreclosure proceedings by requiring that the right to the issuance of a deed be determined by the county court instead of by the ministerial act of the county clerk and determined 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.' Ill. Rev. Stat. 1955, chap. 120, par. 747."

It is clear that prior to the salutary amendments of 1951, a tax deed obtained pursuant to an annual tax sale amounted to little more than color of title, which could become perfected only by virtue of section 6 of the Limitations' Act (Ill. Rev. Sat. 1959, chap. 83, par. 6), upon payment of taxes for seven ...

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