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In Re Application of County Collector

APRIL 7, 1965.

IN THE MATTER OF THE APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NON-PAYMENT OF GENERAL TAXES FOR THE YEAR 1959 AND PRIOR TAXES. PETITION OF R. GABEL FOR TAX DEED. R. GABEL, PETITIONER-APPELLEE,

v.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, RESPONDENT-APPELLANT.



Appeal from the County Court of Cook County; the Hon. THADDEUS V. ADESKO, Judge, presiding. Reversed and remanded.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Petitioner, as the assignee of tax sale certificates covering real estate in the City of Chicago, applied to the County Court for the issuance of a tax deed conveying merchantable title to her under the authority of Section 266 of the Revenue Act of 1939. (Ill Rev Stats 1963, c 120, § 747.) Respondent, City of Chicago, objected to the granting of the relief sought unless reimbursement was first made to it as the owner of certain prior tax deeds to the premises. The City's position was based on Section 270 of the same act. (Ill Rev Stats 1963, c 120, § 751.) After full hearing, the trial court ordered the County Clerk to issue a tax deed in accordance with the petition, and the City has filed this appeal. *fn1

There is no issue of fact. Petitioner purchased a tax sale certificate from one J. Rogers who had bought the premises in question at a sale for nonpayment of the 1959 general taxes. Rogers had also paid the general taxes for the years 1947 through 1958, which amounts were included in his certificate of sale. All taxes subsequent to the sale were also paid. The period of redemption had expired and due notices had been given when petitioner applied for the issuance of a merchantable tax deed.

The City of Chicago was listed in the petition among those persons alleged to have an interest in the premises. That interest, which petitioner, in effect, sought to foreclose, stemmed from the City's ownership of tax deeds which, in turn, were based on its purchase of the premises for the nonpayment of special assessments for the years 1907 through 1912. *fn2

Pertinent parts of the two sections of the statute here involved read as follows:

§ 747 (Section 266):

At any time within 5 months prior to the expiration of the time of redemption from the sale of any real estate for nonpayment of taxes or special assessments, pursuant to judgment and order of sale on the County Collector's application for judgment and order of sale under the provisions of Section 225 of this Act, as amended, the purchaser or his assignee may file a petition in the county court in the same proceeding wherein the judgment of sale was entered upon which the sale was had, praying that the court direct the county clerk to issue a tax deed if the real estate shall not be redeemed from the sale. Such petition shall be accompanied by a filing fee of $15.00. Notice of the fact of filing the petition and the date on which the petitioner intends to make application for an order on the petition that a deed issue if the real estate shall not be redeemed from the sale shall be given to occupants, owners and persons interested in the real estate in the same manner as provided in Section 263, except that only one publication shall be required. . . . The county clerk shall be notified of the filing of the petition and any person owning or interested in the real estate may, if he desires, appear in the proceeding. If the time of redemption expires and the real estate has not been redeemed from the sale and all taxes and special assessments which became due and payable subsequent to the sale have been paid and all forfeitures and sales which occur subsequent to the sale have been redeemed and the notices required by law have been given and the petitioner has complied with all the provisions of law entitling him to a deed, the court shall so find and shall enter an order directing the county clerk on the production of the certificate of purchase and a certified copy of said order, to issue to the purchaser or his assignee a tax deed. . . . The county court is hereby given jurisdiction to, and upon application therefor shall, issue a writ of assistance to put the grantee in possession of said real estate and is also given jurisdiction to, and shall have the power to, enter such orders and issue such writs as may be necessary or desirable to maintain the grantee in possession of said real estate. 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. (Emphasis supplied.)

§ 751 (Section 270): . . . No final judgment or decree of court in any case either at law or in equity or in proceedings under the Eminent Domain Act involving the title to or interest in any land in which such party holding such tax deed shall have an interest or setting aside any tax deed procured under this Act shall be entered until the claimant shall make reimbursement to the party holding such tax deed and payments as herein provided in so far as it shall appear that the holder of such deed or his assignors shall have properly paid or be entitled to in procuring such deed. (Emphasis supplied.)

Considering first the provisions of Section 266, we are urged by petitioner to interpret this language as fully supporting the trial court's order. Prior to the 1951 amendment of this section of the Act, a tax deed purported to convey title to the premises involved, but consistent case law through the years had declared that such a tax deed constituted merely a lien or "color of title." To acquire good title the lienholder was required to take possession of the property, pay taxes for seven consecutive years, and file a bill to quiet title based on Section 6 of the Limitations Act. Ill Rev Stats c 83, § 6.

There can be no doubt but that the 1951 amendment was intended to change this situation as to the character of a tax deed. To say this much, however, is not to reach any conclusion as to the requirements established for the issuance of such a deed conveying merchantable title. The section itself sets forth conditions which must be met before the court may properly direct the issuance of a tax deed. These are:

(1) The period of redemption must have expired without redemption.

(2) All taxes and special assessments becoming due and payable subsequent to the sale must have been paid.

(3) All forfeitures and sales occurring subsequent to the sale must ...


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