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Hogan v. Dalziel

FEBRUARY 19, 1963.

JOHN J. HOGAN AND J.C. MERCHANT, A COPARTNERSHIP DOING BUSINESS AS HOGAN AND MERCHANT, PLAINTIFF-APPELLEE,

v.

DANIEL J. DALZIEL, AS TRUSTEE UNDER THE PROVISIONS OF A TRUST AGREEMENT DATED SEPTEMBER 25, 1937 AND KNOWN AS TRUST NO. 6, ET AL.



Appeal from the Circuit Court of Lake County; the Hon. BERNARD M. DECKER, Judge, presiding. Affirmed.

CROW, J.

This is an appeal by the defendants from a decree foreclosing certain City of Waukegan special assessment liens in a foreclosure suit brought by the assignees of the City of Waukegan who had purchased the liens from the City. The defendants had filed an amended motion to dismiss the complaint asserting that the suit was barred by the twenty year Statute of Limitations under Section 25 of an Act in regard to Limitations, as amended, Ill Rev Stats 1955, c 83, § 24b, or by the five year Statute of Limitations under Section 15 of the same Act, Ill Rev Stats 1955, c 83, § 16. The complaint discloses that these special assessment liens are predicated upon judgments of confirmation entered in 1927 and 1928, upon which there had been no payments, the total amounts remained wholly unpaid as of the filing of the complaint, and that the plaintiffs' assignees acquired title to the liens sought to be foreclosed by sales and assignments thereof by the City on November 15, 1950, certificates of sale having been executed by the City of Waukegan on November 16, 1950. The complaint to foreclose was filed November 25, 1955. The Trial Court denied the amended motion to dismiss. Thereafter the defendants filed an amended answer, which, among other things, admits the City executed and delivered to the plaintiffs the Certificates of Sale and Assignment referred to in the complaint, says the special assessments have been collected by the City, and denies the City has any lien. The Court heard the evidence and found the unpaid special assessments, together with interest, penalties, and costs, are a first and prior lien upon the parcels of real estate of the respective defendants, subject only to general taxes. No evidence was offered by the defendants. The decree of foreclosure in favor of John J. Hogan, plaintiff, was entered September 8, 1961.

The defendants urge the following alleged errors: (1) the Court should have dismissed the cause of action on their amended motion to dismiss because of either or both of the foregoing 20-year or 5-year Statutes of Limitations; (2) the sale of the liens by the City of Waukegan was itself a collection, thereby causing the liens to become terminated and extinguished; and (3) the subject matter of the assignment of the interest of the estate of J.C. Merchant, deceased, one of the original plaintiffs, to John J. Hogan, the other plaintiff, was not properly identified, the parties did not contract for the transfer thereof, and, therefore, that assignment was invalid.

The plaintiff's theory is that the decree of foreclosure is proper, neither of the statutes of limitation referred to by the defendants applies to the foreclosure of special assessment liens, the lien sale by the City did not extinguish the liens, but assigned them to the plaintiff, and gave the assignee full authority to foreclose them, and the liens were properly foreclosed in the name of the plaintiff Hogan upon the suggestion of death of Merchant and the assignment of his interest to Hogan by the Merchant estate.

The suit was originally brought in the name of John J. Hogan and J.C. Merchant, a copartnership doing business as Hogan and Merchant. Evidently some 111 different parcels of real estate and some 111 separate (though similar) Certificates of Sale and Assignment are involved. The liens had been purchased by the partnership and the Certificates of Sale and Assignment from the City were to them, "Hogan and Merchant." Mr. Merchant thereafter died. On April 17, 1961, before trial, the death of Merchant was suggested and an order was entered continuing the suit in the name of Hogan as the assignee of and successor to all of the right, title and interest of the Merchant estate in all special assessment liens purchased by the partnership from the City of Waukegan. The plaintiffs' collective exhibit 3 was an Assignment from Violet R. Merchant, Merchant's widow, individually, as executor, and as trustee under his will, stating that, for a valuable consideration and in pursuance of an Order of the Probate Court of Lake County for the sale and distribution of assets of the partnership known as Hogan and Merchant, she "hereby assigns all of the right, title and interest of the undersigned in and to the assets of the partnership known as Hogan and Merchant, a list of which assets is set forth in the certified copy of the Order of Court hereinabove mentioned, a copy of which Order is hereto attached, to John J. Hogan, surviving partner of the partnership of Hogan and Merchant. . . ." The attached Order of the Probate Court in the Estate of Jay C. Merchant, deceased, entered on the verified petition of Violet R. Merchant, executor, authorized and directed the sale of all of the right, title, and interest of Merchant in the assets of the partnership to John J. Hogan, the surviving partner, and in listing the particular assets the Order states, inter alia: "Special assessment liens assigned by City of Waukegan to Hogan and Merchant . . . $16,497.10." The Order does not further specify, or spell out, the particular liens so transferred to Hogan, either by the numbers of the Certificates of Sale and Assignment, or otherwise. That Order authorized and directed the executor to execute such documents, assignments, etc. that may be necessary to transfer the above described assets to John J. Hogan to the end he shall be the sole owner thereof. The certificates of lien sales and assignment here concerned, plaintiff's collective exhibit 2, were produced in Court by the plaintiff John J. Hogan and he testified that ". . . we owned them until Mr. Merchant passed away and I purchased the interest in the Merchant estate liens." There was no specific further assignment or endorsement as such on each individual Certificate of Sale from Merchant or his estate to Hogan. Hogan testified that he was the present owner and holder of each of the certificates of sale and assignment, being all of the liens herein concerned. No contradictory evidence was introduced.

Section 25 of an Act in Regard to Limitations, as amended, Ill Rev Stats 1955, c 83, § 24b, one of the statutes of limitation on which the defendants rely, is, in part, as follows:

"Judgments in any court of record in this State may be revived by scire facias, or by ordinary civil action in lieu of scire facias as provided by the Civil Practice Act, . . . or a civil action may be brought thereon within twenty years next after the date of such judgment and not after; . . ."

Section 15 of the same Act, Ill Rev Stats 1955, c 83, § 16, the other statute of limitations on which the defendants rely, is, in part, as follows:

". . . and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued."

At the time of the sales and assignments of liens herein concerned, in 1950, and at the time of the filing of the complaint to foreclose, in 1955, Section 84-56 of the Cities and Villages Act, as amended, Ill Rev Stats 1955, c 24, § 84-56, being a part of Article 84, Local Improvements, §§ 84-1 to 84.1-49, provided, in part, as follows:

"Such judgments shall be liens on behalf of the municipality making an improvement, for the payment of which the special tax or special assessment is levied, on the property assessed from the date thereof, to the same extent and of equal force and validity as a lien for the general taxes until the judgments are paid or the property against which any such judgment is entered is sold to pay the judgment.

The municipality on behalf of which such a lien is created may sell and assign the lien; . . . Either the municipality or the assignees of that judgment lien, at any time in its or his own name, may file a bill to foreclose the lien in the same manner that foreclosures are permitted by law in case of delinquent general taxes. . . ."

See also: Ill Rev Stats, 1949, c 24, § 84-56.

Neither the defendants nor plaintiff refer in their pleadings, or otherwise refer in the Trial Court, or here, to any other possibly applicable provision of the Cities and Villages Act, ...


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