Appeal from the Superior Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding. Reversed and remanded with
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
This cause involves distribution of a condemnation award. The trial court ordered that $1,000 each be paid to a mortgagee and to a mechanic's lienor before payment of the balance to tax sale certificate holders. The latter have appealed on the theory that they are entitled to priority.
The facts are undisputed. Condemnation proceedings under the Eminent Domain Act (Ill. Rev Stats 1961, c 47), begun early in 1962, resulted in a judgment on June 1, 1962 awarding $6,800 as full compensation for the taking of the property in question; on June 4, 1962 this amount was deposited with the County Treasurer; and on April 11, 1963 a petition for its distribution was filed.
Defendant Sorkin owned a purchase money first mortgage on the premises, made in 1959 for $13,700. At the time of the petition for distribution, the amount due thereunder was $14,345.45.
Defendant Meden held a mechanic's lien in the amount of $3,094.95 on which he had instituted foreclosure in 1960.
On May 29, 1961 defendant Jackson Lien Co. purchased the property for 1959 general taxes, paying $2,213.61 plus costs, and receiving a tax sale certificate. On April 2, 1962 defendant Wacker Lien Co. purchased the property for 1960 general taxes, paying $2,449.98 plus costs, and also received a tax sale certificate. When the compensation award was deposited with the County Treasurer, there was due on these certificates $3,012.91 and $2,746.03, respectively. At that time the 1961 and 1962 general taxes ($2,469.28 and $270.06, respectively) were also due in a total amount of $2,739.34.
The court ordered the County Treasurer to distribute the award as follows:
(1) $2,739.34 to the County Treasurer;
(2) $1,000 to the mortgagee, Sorkin;
(3) $1,000 to the mechanic's lienor, Meden;
(4) the balance of the deposit ($2,060.66) to the holders of the tax sale certificates, Jackson Lien Co. and Wacker Lien Co., jointly.
By agreement of the parties, $2,739.34 was paid out of the fund to the County Treasurer in satisfaction of the 1961 and 1962 general taxes, leaving $4,060.66 on deposit with priority of distribution in dispute.
The theory advanced in this court to support the order appealed from is that the intervention of condemnation prevented the holders of the tax sale certificates from obtaining tax deeds thereon, with the result that whatever rights or liens they may have had against the premises vanished into thin air. *fn1 We cannot agree, as it is our belief that the standing of the lienholders among themselves should remain unaffected by the condemnation judgment, only the res having been changed from the real estate to the award fund. The Supreme Court so held in City of Chicago v. Gage, 268 Ill. 232, 239, 109 N.E. 28, where it said:
If the property is taken for public use the compensation money is deemed a substitute for the property, and a mortgagee or other lienholder has an equitable ...