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Southern Ill. Cooperative v. Lowery

FEBRUARY 13, 1967.

SOUTHERN ILLINOIS POWER COOPERATIVE, APPELLANT,

v.

ALLIE LOWERY, ET AL., APPELLEES.



Appeal from the Circuit Court of Johnson County; the Hon. TRAFTON DENNIS, Judge, presiding. Order affirmed.

EBERSPACHER, J.

This appeal has been brought by Southern Illinois Power Cooperative from an order of the trial court dismissing its complaint to set aside a tax deed under the provisions of section 72 of the Civil Practice Act and for partition of the land involved. Plaintiff contends that the court erred in dismissing plaintiff's complaint because, (1) the evidence showed that the affidavit of Notice for Issuance of the Tax Deed was false and fraudulent and (2) in the alternative that the published notice was fatally defective for the reason it was published only once when the mandatory provisions of the law require it to be published three times.

Thomas E. Lowery died intestate seized of the North Half of the Southwest Quarter of Section 18, Township 11 South, Range 3 East, Johnson County. Thomas E. Lowery left as his only heirs at law his widow, Allie Lowery, and Donald E. Lowery, Joe R. Stevens and Ivah Hodge. The land was sold for the nonpayment of taxes in 1957 and D.W. Chapman purchased for the taxes due and received a tax deed to the premises on December 14, 1959. On the same day that D.W. Chapman received the tax deed, he conveyed the land described therein to J. Howard Cates and on the same day, J. Howard Cates conveyed the land to the defendants, Donald E. Lowery and Joe R. Stevens, two of Thomas E. Lowery's heirs.

The plaintiff herein acquired the interest, if any, of Ivah Hodge in and to the West Half of the North Half of the Southwest Quarter of Section 18, Township 11 South, Range 3 East, by deed dated June 20, 1961. The plaintiff filed its complaint to set aside the tax deed and for partition on March 11, 1964.

The evidence shows that D.W. Chapman, at the time of filing the petition for issuance of the tax deed, also filed an affidavit stating that Thomas E. Lowery was dead, that no person was in possession of said premises, that Mrs. Thomas E. Lowery or other persons interested in said lands could not be found in Johnson County. Diligent inquiry as to these facts was made of a Mr. Parks. Certificate of publication shows that Notice of filing Petition for Order Directing Issuance of Tax Deed was published one time on August 13, 1959, in The Vienna Times. This is the only publication shown.

Section 263 of the Revenue Act (Ill Rev Stats 1959, c 120, § 744) stated that no holder of the certificate of purchase shall be entitled to a deed unless he had, not less than three months prior to the date of expiration of the redemption period, served notice upon the owners of such real estate advising them when he purchased the land, in whose name it was last taxed, the description of the real estate involved, what taxes were foreclosed, and when the time for redemption would expire. If such owners could not upon diligent inquiry be found in the county, such notice could be sent by registered mail and also published three times in a local newspaper not more than five months nor less than three months before the time of redemption expires. An affidavit is made under section 263 for the purpose of giving notice to owners or parties interested, who cannot be found or are unknown, by publication. In the instant case the affidavit was made but there was only one publication as evidenced by the certificate of publication. Appellants claim that the notice was fatally defective for this reason.

Such notice given under section 263 of the Revenue Act (Ill Rev Stats 1959, c 120, § 744) need not include notice of the fact that a petition has been filed on which the petitioner intended to make application for an order on the petition that a tax deed issue if the property is not redeemed. Here the published notice included notice that such petition had been filed and that such petition would be presented to the court on December 10, 1959, and that at that time an order would be applied for directing the issuance of a tax deed. Such a situation was covered by section 266 of the Revenue Act (Ill Rev Stats 1959, c 120, § 747), which provided:

"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 notice to occupants and the notice by publication shall be given not less than three months prior to the date fixed for making application that a deed issue. The purchaser or his assignee may, if he desires, insert in the notice or notices required by Section 263 the fact of filing the petition for a tax deed and the date on which he intends to apply in the county court for an order for a deed if the real estate shall not be redeemed from the sale, in which case the notice provided by this section shall not be required."

Section 266 of the Revenue Act is designed to render tax titles incontestable except by direct attack unless circumstances warrant application of section 72 of the Civil Practice Act, or unless the order directing the issuance of deed is void, and the order is rendered void, not by reason of mere error or impropriety, but by lack of jurisdiction of the issuing court over either the parties or the subject matter, and jurisdiction once acquired in a tax foreclosure action continues through the entire proceeding, including the order for deed. Farlow v. Oliver, 29 Ill.2d 493, 194 N.E.2d 262.

In Farlow v. Oliver, supra, it was held that compliance with section 263 of the Revenue Act, enacted pursuant to the constitutional mandate that the legislature provide by law for reasonable notice in connection with the sale of realty for nonpayment of taxes, is essential for the validity of a tax deed, but the notices specified in section 266 and 266a of the Act are not an absolute condition precedent to issuance of a tax deed, but merely outline a statutory procedure to be followed.

The purpose of section 263, and its mandatory requirement of notice, was to give parties in interest notice that the taxes had been sold, and when the time of redemption would expire; it provided:

". . . In such notices the purchaser, or his assignee, shall state when he purchased the real estate, in whose name last taxes, the description of the real estate he has purchased; what taxes or special assessments were included in the judgment or decree for which the real estate was sold, and when the time of redemption will expire . . ."

It did not purport to require notice that the purchaser at the tax sale would petition the court for the issuance of a tax deed "which shall be incontestable except by appeal from the order of the county court directing the county clerk to issue the tax deed" as is provided if the purchaser or his assignee saw fit to proceed under section 266 and give the notice provided under that section that a petition for a tax deed had been filed and the date petitioner would ask for a tax deed if the taxes were not redeemed. Section 266 also gave the petitioner the right to combine the information its notice required, with the information required in the notice given under section 263, and if he elected to do so, then he was not required to publish the one time required by section 266 — because there would be 3 notices of both the information required by section 263 and section 266. If the purchaser saw fit to combine the information in one notice, and publish 3 times as required by section 263, his deed would not be subject ...


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