APPEAL from the Circuit Court of Cook County; the Hon. HELEN
F. McGILLICUDDY, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
The petition filed herein sought to have a sale for forfeitures pursuant to section 272 of the Revenue Act, Ill. Rev. Stat. ch. 120, par. 753, set aside, and to have the county collector refund the purchase price to the taxbuyer. On motion of appellee taxbuyer, an order was entered dismissing the petition. The question presented for review is whether the order of dismissal was proper. Issues raised on this appeal are:
1. Did the circuit court have jurisdiction of the subject matter of the petition?
2. Was the action barred by a prior judgment?
3. Was the petition in form sufficient to withstand a motion to dismiss?
The parcel of real estate described in appellant's petition is designated on the assessment books, the general tax warrants, the Tax Judgment, Sale, Redemption and Forfeiture Records of Cook County, and all other tax records relating to the assessment, levy and collection of general taxes for the year 1965 in the offices of the County Assessor, the County Collector and the County Clerk of Cook County, by the Permanent Real Estate Index No. 20-12-101-020.
Appellant contended both below and here that the designation 020 resulted from a consolidation and division of parcels 20-12-101-009 and 20-12-101-017 by the assessor of Cook County in 1962 to become effective in the 1963 assesment; that other parcels in addition to -020 were formed out of -009 and -017 at that time. Also that at the time of consolidation and division there were outstanding delinquent and forfeited taxes against parcels -009 and -017, and as a result those two parcels should not have been consolidated since sec. 515 of the Revenue Act, ch. 120, sec. 515, Ill. Rev. Stat. did not apply to property upon which delinquent or forfeited taxes were outstanding.
On December 28, 1966, pursuant to section 225 of the Revenue Act of 1939, as amended, the Cook County Collector, by publication, gave notice of his intended application for judgment and order of sales of lands delinquent for non-payment of 1965 general taxes on the parcel designated as 20-12-101-020. On January 9, 1967, the Cook County Collector filed his application as No. Misc. 67-004 in the County Division of the Circuit Court of Cook County, and no objection to judgment having been filed, judgment for the delinquent taxes on parcel 20-12-101-020 and an order of sale thereof were entered on January 20, 1967 by the court in accordance with section 235 of the Revenue Act. Pursuant to the judgment and order of sale and section 243 of the Revenue Act, the Cook County Collector offered parcel 20-12-101-020 at public sale and, it not being sold for want of a bidder, the parcel was forfeited to the State of Illinois on February 20, 1967, pursuant to section 246.
Pursuant to section 272 of the Revenue Act, appellee thereafter made application to the County Clerk of Cook County to purchase forfeited parcel 20-12-101-020. The County Clerk thereupon directed the County Collector of Cook County to accept from appellee the sum of $62,003.44, being the total amount of all taxes, interest, costs and fees due on parcel 20-12-101-020. On June 2, 1967, the County Collector received the sum of $62,003.44 from appellee, and thereupon issued to appellee a Certificate of Purchase of Forfeited Property for parcel 20-12-101-020.
At the instance and request of appellant the County Clerk of Cook County, on or about September 10, 1968, made an entry opposite parcel 20-12-101-020 in the 1965 Tax Judgment, Sale, Redemption and Forfeiture Record of Cook County to the effect that there was a sale in error. Such "sale in error" entry was made without the prior knowledge or consent of appellee-taxbuyer. Moreover, at no time has appellee made a demand on the County Collector to refund the $62,003.44 he paid at the tax sale nor has appellee made a demand for cancellation of the Certificate of Purchase.
After the foregoing proceeding for judgment and sale was concluded by a final judgment entered January 20, 1967, no appeal having been taken, appellant on December 31, 1968 filed its petition in the same proceeding to set aside the sale, on the grounds that the consolidation was illegal and that the parcel was erroneously sold. Appellee thereupon filed his motion to dismiss the petition on the following grounds: (1) lack of jurisdiction of the court to entertain such a petition in a County Collector's Application for Judgment and Order of Sale proceeding; (2) the purported cause of action was barred by a prior judgment; and (3) the petition stated no cause of action because the "sale in error" entry in the tax judgment record was unauthorized and without legal effect, which motion was granted, and appellant's petition to set aside the sale was dismissed.
• 1 The County Collector's Annual Application for Judgment and Order of Sale is a special statutory proceeding created by the Revenue Act of 1939, as amended. As appellant contends, the Illinois Constitution (article VI, section 9) vests unlimited original jurisdiction of all justiciable matters in the Circuit Court. The trial court in a Collector's Application proceeding, however, is functioning pursuant to the special statutory jurisdiction granted in the Revenue Act. In such cases jurisdiction is never presumed, and whatever the jurisdiction of the court, the proceeding must conform with the statute. People v. Nunes, 58 Ill. App.2d 55, 207 N.E.2d 143.
• 2 The limited statutory powers of the trial court in a Collector's Application proceeding, after rendition of judgment and order of sale, is well documented in the case of Cherin v. R. & C. Co., 11 Ill.2d 447, 143 N.E.2d 235. They do not include the setting aside of a tax sale at the behest of the tax delinquent owner followed by a refund from the County Treasurer. The trial court may refuse to enter an order for a tax deed if the certificate holder has not complied with certain statutory prerequisites, and may give him a measure of relief by ordering a refund of his purchase money if his failure to comply was after a bona fide attempt to do so; but such relief is not granted at the instance of the owner who ought to have paid the taxes for which the real estate was sold. (Chapter 120, Section 747, Ill. Rev. Stat.) The owner always has his statutory right of redemption, and has his remedy by an action in chancery to set aside a tax sale or a tax deed.
• 3 The power of the Circuit Court to entertain and grant relief on a petition to set aside a tax sale in a proceeding independent from the Collector's Application proceeding is not questioned. In such a proceeding, however, the courts consistently have required reimbursement of the holder of the tax certificate, not from the public treasury, but by the owner whose taxes the certificate holder has paid. Phelps v. Harding, 87 Ill. 442. This rule of equity, since 1919 embodied in section 270 of the Revenue Act (chapter 120, section 751, Ill. Rev. Stat.), without exception has been held to apply to the setting aside of tax sales as well as tax deeds. Tubbs v. Homebuilders, 300 Ill. App. 473, 71 N.E.2d 913; ...