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Application of County Treas.

OCTOBER 30, 1970.

APPLICATION OF COUNTY TREASURER, ETC. PETITION OF T.P.F. CORPORATION FOR ISSUANCE OF TAX DEED, PETITIONER-APPELLANT

v.

JAMES A. DIRST, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. HELEN McGILLICUDDY, Judge, presiding. Affirmed.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Petitioner appeals from an order denying its petition to expunge respondent's redemption from a real estate tax sale, and dismissing its petition for the issuance of a tax deed.

The following chronology of facts is not in dispute:

February 1, 1966. Quitclaim deed, executed on that date, from the Executor of the Estate of Mary Samuelson, also known as Mary Olson, to Respondent.

February 9, 1966. Petitioner's assignor purchased the property at a sale for delinquent 1964 taxes.

February 7, 1969. On this, the last day of the extended redemption period, the County Treasurer accepted a deposit for redemption from Respondent in the amount of $167.55. The record title on that date was in Mary Olson.

February 19, 1969. Deed of February 1, 1966, filed for record by Respondent.

February 28, 1969. Petition to expunge redemption filed, alleging that Respondent had not been entitled to redeem on February 7, 1969, because he had no interest of record on that date.

May 2, 1969. Answer of Respondent filed, relying on deed to him dated February 1, 1966, and recorded February 19, 1969.

May 14, 1969. Order denying petition to expunge and dismissing petition for the issuance of a tax deed.

As presented by the parties, the sole issue on this appeal is a relatively simple one: Does the decision in Weiner v. Jobst, 22 Ill.2d 11, 174 N.E.2d 561 control this case, or does it not? Petitioner contends that it does, and that Respondent's attempted redemption was ineffectual because on that date he did not have any interest of record. Respondent argues that Weiner is distinguishable on its facts, and apparently the trial court so held.

In Weiner, the court split four to three, with Chief Justice Schaefer writing the principal dissenting opinion. A close reading of the majority and minority opinions would prompt us to agree with the dissent if such a path were open to us, which, of course, it is not. We do believe, however, that it is required of us to examine the court's opinion carefully to determine its breadth or narrowness of applicability in the context of the other cases bearing on the subject, and the factual situation in the case now pending before us.

Petitioner would have us hold, in effect, that in the Weiner opinion the court's use of the term "record title" in statements concerning the right to redeem, had the effect of overruling its previous decisions in People v. Hess, 7 Ill.2d 192, 197, 130 N.E.2d 280, and Franzen v. Donichy, 9 Ill.2d 382, 387, 137 N.E.2d 825. In Hess, the court had held that while the constitutional and statutory right to redeem does not inure to the benefit of "a complete stranger to the property," there is no requirement of "complete legal title, but only an undefined `interest' in the real estate." This language was specifically cited with approval in Franzen, which upheld an equitable interest in the property as sufficient basis for redemption even though not recorded until long after foreclosure sale. The court then went on to make the often-repeated comment that redemptions are looked upon with favor, and a liberal construction must therefore be given to redemption laws.

The court's opinion in Weiner, far from overruling Hess and Franzen, appears either to rely on them or to distinguish them on the facts. The Weiner opinion also cites section 5 of Article IX of the constitution which provides that the right of redemption "shall exist in favor of owners and persons interested" in the real estate. From this citation, too, it becomes obvious that ...


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