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In Re Application of County Treasurer

DECEMBER 5, 1973.

IN RE APPLICATION OF THE COUNTY TREASURER OF DU PAGE COUNTY — (F.J. SPACHMAN, PETITIONER-APPELLANT,

v.

CHARLES E. OVERTON, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Du Page County; the Hon. WILLIAM L. GUILD, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The petitioner, F.J. Spachman, appeals from a judgment denying his petition for a tax deed and reinstating the redemption of Charles E. Overton, the respondent. The substantive question presented to this court is whether an assignee for security purposes of the beneficial interest in an Illinois land trust is entitled to redeem from a tax sale of the real estate which comprises the corpus of the land trust.

On November 8, 1967, the petitioner purchased two lots in Du Page County at the annual sale for delinquent taxes. Subsequently, a petition for tax deed was filed which named as defendants the Chicago Title & Trust Company under Trust No. 53127 as the owner, and the last assessee. The beneficiaries of the trust were impleaded as unknown owners; and occupants or parties in possession, spouses, assignees, grantees, heirs-at-law, devisees, legatees, judgment or decree creditors, if any, were impleaded as unknown owners generally.

It appears from the record that Burton R. Heatherly, the assignor and settlor of the trust, started construction on the real estate but thereafter sold and assigned his interest to the respondent, Charles E. Overton, for security purposes, prior to the expiration of the redemption period.

On January 13, 1970, two days prior to the expiration of the extended redemption date, Overton attempted to redeem from the sale in his own name. On February 25, 1970, petitioner filed a petition to expunge the redemption, claiming that Overton improperly redeemed from the sale since he did not have legal or equitable title to the property. An order was entered on the same date finding that respondent failed to appear, declaring the redemption null and void, and granting the petition to expunge. Overton's motion to vacate the order was thereafter denied on April 7, 1970.

On April 29, 1970, respondent Overton filed a motion for a rehearing. Accompanying Overton's motion was a "Petition to Void Tax Sale" filed by Heatherly, who claimed he was not given proper notice of the tax sale. Petitioner filed a motion to dismiss the petition to void the tax sale. On July 28, 1970, the court found that it had erred in its prior orders and held the redemption valid. The orders of April 7, 1970, and February 25, 1970, were set aside and the redemption by respondent Overton was reinstated. The court's orders did not expressly dispose of Heatherly's petition to void the tax sale or directly deny the tax deed petition.

Petitioner filed a motion for reconsideration which was denied on November 23, 1970. He then filed a notice of appeal from the orders of July 28, 1970, reinstating the redemption, and November 23, 1970, denying reconsideration. Almost a year later on November 29, 1971, respondent Overton filed a motion in the trial court to dismiss the appeal for failure to file a timely record in the reviewing court. Before the motion was decided petitioner filed a short record docketing the case in this court on December 10, 1971. Respondent Overton did not move in this court to dismiss petitioner's appeal for failure to timely file a record before us. With the short record petitioner filed a motion to dismiss the appeal for lack of a final order. We ordered that appeal dismissed on December 15, 1971. On January 18, 1972, we denied a motion by respondent Overton to vacate the dismissal of the first appeal over his contention that, in effect, the original appeal was taken from a final order.

On February 15, 1972, petitioner filed a motion in the trial court to enter final judgment on the petition for the tax deed and on the petition of Heatherly to void the tax sale since neither petition had been specifically disposed of in the order reinstating the redemption. With a different judge presiding than the one who had entered the previous orders, the trial court ordered that the April 7, 1970 and the February 25, 1970 orders be set aside, that the redemption be reinstated, and that the petition for tax deed be denied. The court also found no just reason for delaying enforcement or appeal of the order. Petitioner has taken the present appeal from that order.

The threshold issue raised by respondent is whether due to the voluntary dismissal of the first appeal, the orders entered on July 28, 1970, and November 23, 1970, became res judicata on the theory that the appeal was from a final appealable order. If we were to find that the prior appeal was from a final appealable order, the instant appeal, prosecuted well over a year later, would come too late. (In re Estate of Ireland (1971), 132 Ill. App.2d 157.) Petitioner's reply is that his first appeal was not pursuant to a final appealable order because the petition for the tax deed and the petition to expunge the redemption, and also Heatherly's petition to void the tax sale filed in the same proceedings were still pending in the trial court.

We dismissed the first appeal for lack of a final appealable order pursuant to petitioner's motion, and also denied respondent's motion to vacate contesting our dismissal for want of an appealable order. Thereafter, we issued a mandate in that appeal on January 24, 1972, ending our jurisdiction in the cause. (See People v. McCloskey (1971), 2 Ill. App.3d 892, 898.) Regardless of its correctness our decision on the non-appealability of the orders in the first appeal is res judicata so that we are required to reach the merits of this appeal. People ex rel Kastning v. Militzer (1921), 301 Ill. 284, 287; Kazubowski v. Kazubowski (1970), 45 Ill.2d 405, 414; see 46 Am.Jur.2d, Judgments secs. 477, 500, pp. 640-641, 656-57; Restatement, Judgments sec. 49, comment b.

Petitioner argues that respondent Overton as assignee for security purposes of a beneficial interest in a land trust, lacks standing to redeem from a tax sale of real estate. Specifically petitioner contends respondent is not a person interested in the real estate who has a right to redeem because (1) the beneficiary of a land trust has neither a legal nor equitable interest in the real estate which makes up the res of the trust; (2) such beneficiary is not entitled to notice of the tax deed petition; (3) such beneficiary is a stranger to record title; and (4) respondent is only a creditor with an unperfected security interest in the beneficial interest of the land trust. Respondent argues that he is entitled to redeem because different standards apply when interpreting who may redeem and who is entitled to notice; that a liberal construction of the constitutional and statutory right of redemption should be applied; and that by the operation of a land trust and as a practical matter the land trust beneficiary is a person interested in the real estate for the purpose of redemption.

Section 5 of article IX of the 1870 Illinois Constitution, as applicable, provides:

"The right of redemption from all sales of real estate for the non-payment of taxes * * * shall exist in favor of owners and persons interested in such real estate * * *. And the general assembly shall provide by law for reasonable notice to be given to the owners or parties interested * * *." *fn1

The pertinent statutory provisions implementing the constitutional right of redemption do not specifically define who is entitled to redeem and who therefore has a redeemable interest. (See Ill. Rev. Stat. 1969, ch. 120, pars. 734, 744, 747.) Sections 263 and 266 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, pars. 744, 747) identify those entitled to notice in similar phraseology to that used in the constitutional provisions: "parties interested in such real ...


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