APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DEMPSEY, Judge, presiding.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 5, 1971.
This is an appeal from an order of the County Division of the Circuit Court of Cook County directing the County Clerk of Cook County to issue to the First Lien Co. a tax deed to improved property located at 9355 South Emerald Avenue in Chicago.
Crawford Savings and Loan Association (Crawford), which filed objections to the issuance of the tax deed, contends on appeal (1) that the Circuit Court should have permitted redemption on the date of hearing because the Petition of First Lien Co., specifically provided for redemption at any time on or before the date of hearing; (2) that the findings of the Circuit Court were clearly erroneous; and (3) that the tax sale was void because First Lien did not make payment "forthwith" as required by Section 247 of the Revenue Act of 1939 as amended (Ill. Rev. Stat. 1965, Ch. 120, § 728).
Ivory R. Phinisee and Dorothy Phinisee were the owners and occupants of a single family brick bungalow valued at approximately $25,000.00 and located at 9355 South Emerald Avenue in Chicago. Crawford held a mortgage on the property with an unpaid balance of $12,857.70.
The City of Chicago levied a special assessment against the property which was to be paid in five installments. The first installment of $130.83 was not paid when due and became delinquent after January 1, 1964. The City of Chicago obtained judgment on the delinquent installment, and the property was ordered sold. The Cook County Collector conducted the sale on April 20, 1966. First Lien Co. made the successful bid on the property and paid the Cook County Collector $153.61 on May 3, 1966. The two year redemption period ended on April 19, 1968, but First Lien Co. voluntarily extended the redemption period until January 16, 1969.
On September 4, 1968, First Lien Co. filed a Petition for Deed in the County Division of the Circuit Court of Cook County. The prayer for relief stated:
Petitioner asks that an order may be entered directing the County Clerk of Cook County, Illinois to issue a deed to your petitioner if redemption shall not have been made on or before the date of hearing upon this petition.
On September 4, 1968, First Lien Co. in addition caused the Clerk of the Circuit Court to notify the Phinisees, Crawford, and the Chicago Title and Trust Co. by certified mail that the redemption period would end on January 16, 1969, that a petition for tax deed had been filed, and that the Circuit Court would hold a hearing on the petition on January 21, 1969. On September 17, 1968, an agent of First Lien Co. served Crawford with notice which contained substantially similar information as the notice mailed by the Clerk of the Circuit Court.
Crawford first learned of the tax sale when on September 8, 1968, it received the notice mailed by the Clerk of the Circuit Court. Crawford then contacted the Phinisees and informed them that they would have to pay the special assessment because their tax escrow account did not provide for payment of special assessments. On November 18, 1968, Crawford obtained an estimate of the cost of redemption, and on December 9, 1968, the Phinisees executed an advance agreement to finance the payment of the special assessment. In late December, 1968, Crawford ordered a title report from the Chicago Title and Trust Co., and in early January, 1969, its attorneys searched the tract book at the Chicago Title and Trust Co. and ascertained that the Phinisees still held title to the property.
On January 21, 1969, Crawford tendered the redemption money to the County Clerk who refused to accept it because the redemption period had ended on January 16, 1969. On January 23, 1969, Crawford remitted the redemption money along with the redemption estimate to First Lien Co. who returned the money on January 24, 1969.
At the hearing on March 19, 1969, Crawford presented testimony to establish that First Lien Co. had waived strict enforcement of the redemption period. James R. Krebs, Vice President of Crawford, testified that on or about December 14, 1968, he had telephoned Donald Leahy, an officer of First Lien Co., about the redemptions of a number of pieces of property including the property located at 9355 South Emerald Avenue in Chicago. He further testified that Leahy had told him "that it takes a couple of weeks to obtain a deed and during that period we would accept the redemption of the taxes."
Donald Leahy, Treasurer of First Lien Co., testified that he did not recall having a conversation with Krebs on or near December 14, 1968. He further testified that it was his practice to note telephone calls on his case file and that there were no notations on his file of any conversation with Krebs on December 14, 1968. The file had notations of a call from an attorney who requested the redemption price on September 19, 1968, and of a call from Krebs on January 21, 1969. Leahy then described the January 21, 1969, conversation with Krebs:
He stated at that time he had called, he had spoken to me earlier, well, before this. I don't think he stated what time or day. And, I had confirmed with him that I would accept redemption prior or after the period of redemption. And, I said at that time I had no recollection of talking to him. And, it is my general practice to state that the period of redemption was a final date. Anything could be paid and it should be paid prior to this because sometime there are problems.
The Circuit Court sitting without a jury found in favor of First Lien Co. and against Crawford, and directed First Lien Co. to present its order for the issuance of a deed with a report of the proceedings. First Lien Co. presented the order to the Circuit Court without giving notice to Crawford. The order was entered and the deed issued. Crawford filed a petition under Section 72 of the Civil Practice Act (Ill. Rev. Stat. 1967, Ch. 110, § 72) to vacate the order. The Circuit Court vacated the order because of First Lien ...