Appeal from the Circuit Court of Cook County; the Hon. JAMES
E. MURPHY, Judge, presiding. Order reversed and cause remanded
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order, entered December 18, 1964, denying a petition filed under section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, Par 72) seeking to set aside an order entered September 4, 1964, which directed the issuance of a tax deed and a writ of assistance.
The parcel of real estate in question is located on the southeast corner of 137th and Illinois Streets, or 10 West 137th Street, in Riverdale, Illinois, and is legally described as:
Lots 1 and 2 in Block 20 in Riverdale, being the Schmidt Subdivision, in Section 33, Township 37 North, Range 14, East of the Third Principal Meridian, in Cook County, Illinois.
The parcel is improved with a one and one-half story frame dwelling facing 137th Street, and a four-room, tar-paper covered cottage in the rear and slightly to the west of the frame dwelling, facing Illinois Street. The first floor of the frame dwelling is occupied by the petitioner herein, Arthur J. Dahlke and his wife, Adeline, and one of their six children. The Dahlkes owned the realty at the time the tax deed was directed to be issued. The second floor is occupied by a niece of Arthur Dahlke, Mrs. Shirley Kramer Fazio and her husband as tenants, and had been occupied by them for 7 years immediately preceding the issuance of the tax deed. The frame dwelling has entrances in both the front and the rear. The four-room cottage in the rear is occupied by Mr. and Mrs. James Little and their son, and had been occupied by them as tenants for 8 years prior to the issuance of the tax deed. Each tenant (the Fazios and the Littles) pays $42.50 per month in rent to the Dahlkes.
On February 5, 1962, an application was filed by the Cook County Collector for judgment and order of sale of the real estate for the delinquent 1960 real estate taxes. The property was sold on February 21st at public auction to the First Lien Company, which received a certificate of purchase therefor. The First Lien Company also paid the 1961 and the 1963 real estate taxes on the property. The period of redemption would normally have expired on February 21, 1964, two years from the date of sale, but the redemption period was extended to August 10, 1964, pursuant to section 263 of the Revenue Act (Ill Rev Stats 1963, c 120, Par 744.) On March 31, 1964, the First Lien Company filed an application in the Circuit Court, County Division, praying for the entry of an order directing the County Clerk to issue a deed to the First Lien Company if redemption from the sale should not be made. The application recited, inter alia, that Arthur J. and Adeline Dahlke were the joint owners of the real estate and that the last assessee for taxes was Arthur J. Dahlke. The application did not show who was interested in the property other than naming the Dahlkes as owners and occupants.
The certificate of purchase was sold and assigned by the First Lien Company to the respondent herein, Hawthorn, Lane and Company, on August 10, 1964, and the latter was substituted as applicant for the tax deed.
The application for the tax deed came on for hearing on September 3, 1964, at which time ex parte proceedings were had in which Arthur and Adeline Dahlke were neither present nor represented by counsel. To the application for the tax deed was attached an affidavit made by Mr. Ben Shapiro, which affidavit related to the service of notices of the tax deed proceedings on parties interested in the real estate. Mr. Shapiro did not testify at the hearing in support of his affidavit, but testimony was given by Mr. Erwin Rutz in support thereof. Mr. Rutz identified Mr. Shapiro's signature and stated that all the matters contained in the affidavit were true and correct to his own personal knowledge, based upon his familiarity with Shapiro's mode and method of operation, and upon Shapiro's notes which Rutz had in his possession. Mr. Rutz testified that the affidavit was correct in stating that the parcel was improved with a one and one-half story frame dwelling, that Arthur J. and Adeline Dahlke were its occupants, and that notice of the expiration of the period of redemption had been served upon them as required by law. The notes of Shapiro to which Mr. Rutz was referring appears to be the instruction by the First Lien Company upon Mr. Shapiro to serve Arthur J. Dahlke and Adeline Dahlke, the "joint owners of the property located on the southeast corner of 137th Street and Illinois Street in Riverdale, Illinois." An order was entered on September 4th which provided, inter alia, for the issuance of a tax deed to the respondent herein, and for a writ of assistance.
On October 23, 1964, Arthur J. Dahlke filed his petition under section 72 of the Civil Practice Act, wherein he alleged that he had not received notice of the expiration of the period of redemption, and that he was unable to say whether his wife had ever been served with such notice, but that he doubted she had because he was unable to rely on her statements due to the fact that she had been mentally ill and had been committed to a psychopathic hospital. He also claimed that there were other occupants of the property who had not been served with notice, and charged that the respondent had committed a fraud in the procurement of the tax deed by filing a false affidavit, and requested that the tax deed be set aside.
Respondent filed a motion to vacate and dismiss the section 72 petition, which motion was denied by the trial court. Respondent thereupon filed an answer to the petition, wherein it alleged the findings of the September 4th tax deed order, and specifically alleged that the court in the tax deed proceedings found that all notices were served as required by law. The answer also alleged other matters both preceding and succeeding the September 4th tax deed order, relating to alleged correspondence and telephone conversations between respondent and petitioner.
Hearing on the section 72 petition commenced on December 2, 1964, at which petitioner presented evidence that he was employed as a truck driver for the Village of Riverdale for the preceding 13 years. Evidence was offered that he worked from 7:00 a.m. until 3:30 p.m., but that he did not get home until 6:00 or 6.30 in the evening due to the fact that each night after work he visits with friends at a tavern. The first notice petitioner claims to have received concerning the unpaid 1960 taxes and the tax deed proceedings in connection therewith, was on October 7, 1964, when a Mr. Simon, real estate agent for the respondent, visited the Dahlke home and informed Mr. Dahlke that the property had been sold for unpaid back taxes. The Dahlkes were given until October 10 to vacate the premises. The same day Mr. Dahlke attempted to locate the old tax bills on the property, and when he was unable to do so he informed his wife that they had better contact an attorney. His wife thereupon went into the bathroom where she slashed her wrists. She was taken to a doctor in Riverdale and then was committed to the Psychopathic Hospital where she remained for 7 days until discharged by order of court. The reason given by two doctors for her commitment to the Psychopathic Hospital was "chronic brain syndrome with alcoholism and depressive reaction, recent suicidal attempts, slashed both wrists, excessive drinking, poor judgment, depressed, no insight."
On October 8th Mr. Dahlke again searched for the tax bills and, with the help of his sister, they were found under the table pad of the dining room table, together with letters from the respondent and its attorney, and a copy of the writ of assistance which had been served on Mrs. Dahlke. The same day Mr. Dahlke received a telephone call from the Sheriff's Office to the effect that he was going to be evicted and that he had better contact Mr. Simon. Petitioner saw Mr. Simon on October 10th, at which time he paid Mr. Simon $50 for rent of the first floor apartment and also signed a paper purporting to be an agreement to be the tenant of Mr. Simon.
There was uncontradicted evidence that tenants occupied the second floor of the one and one-half story frame dwelling, that tenants also occupied the cottage at the rear of the property, and that none of these tenants had ever been served with notice of the expiration of the period of redemption.
Ben Shapiro, affiant in the affidavit filed in connection with the tax deed application, testified in the section 72 proceedings that he served both Mr. and Mrs. Dahlke on April 9, 1964, with notice of the expiration of the period of redemption, and that Mr. and Mrs. Dahlke were the only two occupants of the premises. Mr. Shapiro testified that he served Mr. Dahlke at about 4:00 p.m. on April 9th, but Mr. Dahlke testified that he did not get home until 6:00 p.m. on that date. Mr. Shapiro also took a photograph of the premises on April 9th, which was admitted into evidence, and which shows the one and one-half story frame dwelling as the only improvement on the property; it in no way shows the cottage at the rear of the property. Mr. Shapiro testified that he made a diligent search and inquiry to locate the persons interested in the property, by searching the county tract books between three and five months prior to the expiration of the period of redemption. When asked if anything else was done in the nature of a diligent search and inquiry, Shapiro answered, "I made nothing else" and "I did nothing." The only time the property was visited by Shapiro was on April 9th, the date he testified ...